1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 264 OF 2003 Subhadrabai w/o Kisanrao Lambhade & others .. APPELLANTS VERSUS Malanbai w/o Kisan Salve ( Deceased through LRs) & others .. RESPONDENTS Shri N. K. Kakade, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. DATE : 22 nd July, 2009. PER COURT : 1 Appellants / original defendants 2 to 6 are raising exception to the concurrent judgments recorded by the courts below. 2 Respondent no. 1 / original plaintiff instituted Regular Civil Suit no. 252/89 claiming partition and separate possession in respect of the agricultural property. According to plaintiff, land survey no. 103 admeasuring 18 acres 31 gunthas, gat no. 163/1 admeasuring 4 Hector and 5 R, land survey no. 163/2 admeasuring 1 Hector and 52 R, land survey nos. 162/3 admeasuring 89 R, survey no. 164/4 admeasuring 96 R total admeasuring 7 hector and 46 R is the suit property. The property originally belonged to her father Kisan who had derived the title from his father Piraji 2 s/o Dagadu Baosode. According to the plaintiff, the suit property was joint property and deceased Kisan was the karta. After demise of Kisan, defendant no. 1 became the owner of the property. Plaintiff Malanbai, her brother Shrawan are the legal heirs of deceased Kisan. Shrawan, her brother died in the year 1980 and after demise of her brother, plaintiff being the successor of Kisan, is entitled to have share in the agricultural property. Plaintiff came to know that defendant nos. 1 and 2 in collusion with defendant nos. 3 to 7 have alienated the suit land. Plaintiff as such demanded her separate share which was refused by the defendants. As such, plaintiff has approached this court. 3 Defendant nos. 1 and 2 submitted their written statement. They admitted description of the property as well as relationship of plaintiff with Kisan, Kaduba and Deorao. Kaduba and Deorao were the brothers of Kisan. After demise of Kisan, according to defendants, defendant no. 1 became the Karta of the family and he came in possession of the property. It is also admitted that after demise of Kisan and Shrawan, defendant no. 1 being the legal heir of deceased Kisan is entitled to have share in the property. Defendant nos. 1 and 2 have admitted plaintiff’s 1/3 rd share in the property. . Defendant nos. 3 to 5 have resisted the claim put forth by plaintiff by filing their joint written statement. They denied the relationship of plaintiff with deceased Kisan. According to them, plaintiff and Shrawan were not the issues born to deceased Kisan and as such, plaintiff cannot claim her entitlement to the property. It is contended that on 13-3-1980, Kadu Piraji sold out 4 acres of land to defendant Samindrabai through registered sale- 3 deed. Kadu Piraji had sold 10 acres of suit land to Samindrabai Kisanrao on 13-3-1980 on 13-3-1980 and she gave 5 acres of land in he rname to her cousin daughter. It is alleged that defendant nos. 3 to 5 have improved the quality of land after they were put in possession over the property by daughter of Subhadrabai. It is contended that plaintiff has no share in the suit land and the suit is presented beyond limitation. . Defendant nos. 6 to 7 also resisted the suit by filing written statement at exh. 32. They have also denied the relationship of plaintiff with deceased Kisan. According to them, Piraji had three sons viz. Kisan, Kaduba and Deorao. It is denied that Kisan headed joint family and after his demise Kadu Piraji became the Karta of the family. It is contended that Dagadu was the owner of the suit property and he had two sons by name Piraji Dagadu and Bhagaji Dagadu. It is alleged that Piraji and Bhagaji had half share in the property. Defendants claim their entitlement to the property through Bhagaji. 4 Trial court after considering the pleadings of the parties, framed issues and after receiving evidence lead by the parties came to the conclusion that the plaintiff has established her relationship with deceased Kisan and as such she is entitled to have 1/3 rd share in the suit property. Accordingly, trial court granted decree in favour of the plaintiff. Defendnt nos. 3 to 6 presented appeal bearing Regular Civil Appeal no. 126/97 which came to be heard and disposed of by the Extra Joint District Judge, Aurangabad who was pleased to dismiss the same by judgment and order dt. 29-4-2002. 4 5 I have perused the judgments recorded by both the courts below and heard arguments advanced by Shri Kakade, learned counsel for the appellants. Shri Kakade, learned counsel for the appellants has vehemently contended that the plaintiff has not established her relationship with deceased Kisan. As the plaintiff has failed to establish that she is daughter of deceased Kisan, she is not entitled to claim any share in the joint family property. It is to be taken note of that the plaintiff has claimed that she is daughter of deceased Kisan which fact has been admitted by defendant nos. 1 and 2 who are her close relatives. Defendant nos.3 to 6 controverted the contentions raised by plaintiff regarding her relationship with her father. It is for the concerned defendants, to lead evidence and establish their contention. There does not appear to be any evidence lead by the concerned defendants to establish their contention as regards plaintiff’s relationship with deceased Kisan. Trial court on the basis of evidence lead by the plaintiff as well as considering the admissions of defendant nos. 1 and 2 who are closely related to plaintiff has reached conclusion that plaintiff has established that she is the daughter of deceased Kisan. Even otherwise, presumption would be in favour of legitimacy and, if any party wants to controvert it, burden casts on such party to disprove the fact. In the instant matter, the burden cast on the defendants has not been discharged by them. Learned counsel for the appellant has also made a grievance that necessary issue has not been framed by the trial court and as such, defendants were prejudicially affected. It transpires on perusing judgment that the issue has been dealt with by the trial court and the necessary evidence placed on record is scrutinised and the finding has been recorded in respect of relationship of plaintiff with deceased Kisan. Issue no. 1 framed 5 by the trial court is in respect of entitlement of the plaintiff to get partition, includes in itself the contention raised by the defendants. In the facts and circumstances of the case, I am of the opinion that defence is not prejudicially affected as issue no. 1 framed by trial court in itself includes the contention or defence raised by the defence as regards legitimacy of the relations. Arguments raised by defendants in that regard have also been considered by the first appellate court and the first appellate court concurred with the findings recorded by the trial court. The first appellate court has also further recorded finding that the defendants have not established interest of their predecessor in title Bhaguji in regard to the disputed property and on that ground also the appellate court has held that defendant nos. 3 to 6 have failed to prove their case. Considering the findings recorded by the appellate court, I am of the considered view that no error is committed by the courts below in recording reasons and arriving at finding. Contentions raised in this appeal are essentially the matters relating to appreciation of evidence. No substantial question of law arises for consideration of the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa264.03.odt