:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.573 OF 200 SECOND APPEAL NO.573 OF 200 SECOND APPEAL NO.573 OF 2008 Motiram Bhikaji Porje ...Appellant. v. Namdeo Bhikaji Kambale & Ors. ...Respondents. Mr.M.M.Sathaye , adv. for the Appellant. Mr.Rahul D. Motkari , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 24th September, 2008. DATE: 24th September, 2008. DATE: 24th September, 2008. P.C. P.C. P.C. 1. The appellant before this Court is the original defendant while the respondents are the original plaintiffs. To state in brief, plaintiff filed Regular Civil Suit No.628 of 1988 in the Court of 7th Joint Civil Judge Junior Division, Nashik. According to them, the suit property, being agricultural land bearing gat no.193 admeasuring 4 H 56 R situated at Village: Jalalpur, was purchased by the plaintiff no.2 Sitaram, deceased Ramchandra, who was father of the plaintiff nos.3 to 5 and defendant jointly about 23 years before filing of the suit. According to them, partition had taken place and each of the purchasers was allotted 1/3rd share and accordingly, the plaintiff no.2 was in possession of the middle portion, Ramchandra was in possession of Eastern portion and Defendant was in possession of the Western portion. Defendant was trying :2: to interfere in their possession and, therefore, they filed suit for injunction. Defendant contested suit by filing the written statement contending that the property was purchased in the joint names under registered sale deed and no partition had taken place. He claimed that he was in possession of the whole of the land, and, therefore, suit for injunction was not tenable. He also contended that Sitamram and Ramchandra had no share in the property though land was purchased in the joint names because Ramchandra had paid only an amount of Rs.1,000/- to the defendant as a loan and the defendant had repaid that money. Names of Sitaram and Ramchandra in the sale deed were nominal and they did not get any share in the property. After filing of the written statement, the plaintiffs made an amendment in the plaint and an alternative prayer for partition and separate possession was made. The suit was contested. Initially by judgment dated 31st March, 1999, the suit of the plaintiffs was dismissed on the ground that they could not prove their possession and the counter claim of the defendant was allowed on the ground that he had proved his possession. Therefore, plaintiff no.1, who claimed to have purchased the share of the plaintiff nos.2 to 4, was restrained from interfering in peaceful possession of the defendant over the suit property. Against that judgment, plaintiffs preferred appeal. In the appeal, while the order of injunction in favour of the defendant was continued, suit was remanded back only :3: for limited purpose of deciding the claim for partition and separate possession of the plaintiffs. After fresh hearing limited on that point, on 31st March, 2003, 7th Joint Civil Judge, Junior Division and J.M.F.C., Nashik passed the decree for partition and separate possession holding that the plaintiff no.2 is entitled to 1/3rd share, plaintiff nos.3 and 5 are collectively entitled to 1/3rd share and the learned Judge directed partition and separate possession accordingly. Against that decree, the defendant preferred Civil Appeal No.158 of 2003. That appeal came to be dismissed by the learned District Judge-3, Nashik by the impugned judgment dated 25-2-2008. 2. This is the Second Appeal on concurrent findings of both the Courts below that Sitaram and Ramchandra were joint purchasers alongwith the defendant and they had 1/3rd share in the property. The learned counsel for the defendant/appellant vehemently contended that the suit is barred by the limitation and the sale deed does not reveal as to what contribution was made by each of the purchasers and it does not show what was the share of each of them in the property. He further contended that because the sale deed does not reveal intention of the parties to partition the property and to have separate share, property can not be put to partition. :4: 3. In the sale deed, admittedly, there is no mention how much amount out of consideration was paid by each of the three purchasers nor shares were specified. There is oral evidence led by the plaintiffs that each of them had paid 1/3rd share and the learned trial Court believed that. In absence of any contrary evidence, the learned trial Court was right in holding that each of the purchasers had equal 1/3rd share in the property. The suit was filed in 1988 and in the written statement, defendant had claimed that the property was joint. Courts held that the partition had not taken place, therefore, as long as the partition has not taken place, property is joint and, therefore, it can be put to partition. The Courts below rejected the contention of the defendant that the suit for partition was barred by the limitation. There is no substance to show that the findings were wrong. The contention of the learned counsel that because the sale deed does not reveal intention of the purchasers to partition the property, it can never be put to partition, is against the provisions of law and unacceptable. After hearing the learned counsel for the parties, I find that there is no substantial question of law involved in the appeal and therefore, the appeal stands dismissed. 4. As the appeal itself is dismissed, civil application does not survive and stands dismissed. :5: 5. The learned counsel for the appellant seeks stay to the execution of the decree for six weeks. This is strongly opposed by the plaintiff/respondent on the ground that defendant is in illegal possession and he has deprived plaintiffs of their share and possession of the property. I do not find any valid reason to stay the execution of the decree for six weeks. Request stands rejected. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)