1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO.99 OF 2008 WITH C.A.S. NO.286 OF 2008 Dhondiram Vithal Hujare & ors. Appellants vs. Milind Baburao Hujare & ors. Respondents Mr.A.V.Anturkar, Sr.Counsel i/b.Mr.Tanaji Mhatugade for the Appellants. Mr.P.D.Dalvi for Respondents 1, 2 and 3. CORAM : ANOOP V. MOHTA,J. DATED : 24th April, 2008 P.C. The present Second Appeal is filed by the applicants-defendants against the grant of partition decree in favour of respondents-plaintiffs. 2. The subject matter of the present appeal is Block Nos.632,634,636, 640 and 641 situated in the village Paragaon, Tal-Hatkanangle, Dist. Kolhapur with C.T.S.No.1010 of Society Paragaon, and constructed house out of Plot No.549 and 550 situated at Freedom Fighters’ society, Kolhapur and 13 movable properties which includes Fridge, Colour T.V.Four Wheeler, Two wheeler, house articles, golden ornaments, shebbuffalow, electric pump, pipe line etc. 3. As alleged, the said Paragaon (old) had sunk in a 2 flood of river Warna. There a new Housing society was constituted know as New Paragaon and the landed properties and house in new Pargaon are the ancestral properties of Shri Vitthal Hujare, who died on 18.01.1997. 4. As alleged, the house constructed in Block No.640 exclusively belongs to Dhondiram, Appellant No.1 as it was constructed by him from his sole earning. Likewise the house constructed in the Freedom Fighter’s Housing Society Kolhapur exclusively belongs to Appellant No.3 Jaysingrao, which is constructed by him from his own and his wife’s earning and by withdraw amount from G.P.F. and by raising loan from various banks and societies. 5. On 18.01.1997 deceased Vitthal Hujare during the life time himself and applied to Competent Authority of Officer of Project Affected Persons Rehabilitation for obtain the permission of partition but Competent Authority informed that such permission is not necessary. 6. On 11.04.1991 deceased Vitthal Hujare during his lifetime himself had applied to the learned Tahasildar under section 85 of Maharashtra Land Revenue Code for partition. Accordingly Mutation Entry No.15420 came to be effected and landed properties were distributed among 3 his five sons. 7. On 19.03.2001, accordingly, Memorandum of Partition was reduced into writing which is signed by the Applicant No.1 to 4 and by Respondent nos. 1 Milind Baburao Hujare confirming the previous partition, which is effected by deceased Vitthal Hujare during his lifetime. 8. Subsequently, Respondent’s Nos. 1 to 3 herein filed Special Civil Suit No.183 of 2002 before the learned IInd Civil Judge, Senior Division Kolhapur for partition and separate possession. 9. The said Suit was opposed by the present Appeal Nos. 1 to 5 herein by filing written statement at Exhibit 25. 10. On 05.02.2005 the said Suit came to be decreed in favour of present Respondent Nos. 1 to 3 herein on 05.02.2005. 11. On 15.04.2005 the appellant aggrieved by the said Decree, judgment and order, filed a Civil Appeal No.173 of 2005 before the learned Ad-hoc District Judge, Kolhapur. 12. On 05.10.2007 the said appeal came to be dismissed 4 by an order dated 05.10.2007. Hence, this Second Appeal. 13. Both the Courts have, after considering the material and evidence on record, held that the plaintiffs proved that the suit properties are ancestral and joint family property of plaintiffs and defendants and further that they have 7/56th share in the suit property and, therefore, are entitled to partition and separate possession and, accordingly, granted the decree and partition as claimed. It is also held that the defendants failed to prove that the partition took place between the predecessors in title of plaintiffs and defendant nos.1 to 4 in respect of ancestral property during lifetime of Vitthal Hujare and they are in possession of their respective shares, based upon the memorandum of partition dated 19.3.2001 but failed to prove the same also. The defendants further unable to prove that suit property described in paragraphs 1-B and 1-D is self-acquired property of defendant no.1. The defendants only proved to the extent that property mentioned in para 1-E is owned by defendant no.1’s son. The lower Appellate Court, after re-appreciating the evidence and material placed on record, has confirmed the decree by observing that there is no illegality and/or any error committed in decreeing the suit. The learned counsel appearing for the appellant has strongly 5 relied on compilation of the documents filed on record, exhibited one partition deed dated 19.3.2001 along with mutation entry. Both the courts, after considering the material and evidence on record as recorded above negatived the contention of the defendants in this regard by observing specifically that the defendants failed to prove these documents and the alleged partition. The presumption of jointness of property unless rebutted specifically by the defendants to the partition has failed to discharge the burden and as observed in para 15 that "Though the defendants have categorically alleged and stated about memorandum of partition dated 19.3.2001, the very memorandum is neither produced nor got proved according to law. Though Jaysing deposed about signing the memorandum by one Ramchandra Patil, Hindurao Suryawanshiand Ashok Patil etc. None of them is examined as a witness to substantiate his contention about the memorandum." The submission that the document is exhibited that itself is not sufficient for simple reason that the exhibition in no way amounts to the admission and proving of the contents. The fact needs specific proof which is absent in the present case as observed. Any-how there is no perversity in the orders passed by the courts below. The view as taken is within the frame work of law and the record. 6 14. The Second Appeal is therefore, dismissed. 15. In view of dismissal of second appeal, civil application no.286/2008 is also dismissed. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.]