1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 612 OF 2010 Raman S/o Dhnanaji Choudhary .... APPELLANT V E R S U S Bhagwan S/o Dhnanaji Choudhary & Oths. .... RESPONDENTS ----------------------------------------------------------------------------------------------------------------- Mr. S.P. Shah, Advocate for the appellant. Mr. R.B. Dhaware, Advocate holding for Mr. U.S. Malte, Advocate for respondents. ----------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 26/10/2010 ORAL ORDER : 1. This is original plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for partition and separate possession in respect of various agricultural lands and house properties. 3. The Trial Court partly decreed the Suit to the extent of half share in G.No. 476,486,523 and house property No. 3235/A. The plaintiff and defendants both preferred the Appeal before the District Court. The District Court allowed both the Appeals partly. It was declared that the plaintiff, defendant and 2 defendant nos. 3 and 4 each have 5/16th share in the agricultural land G.No. 246, so also house properties CTS Nos. 1863,1864 and 2617. The claim of the plaintiff regarding share in G.No. 523, 489 and 208 and house No. 3232/1 is negatived and in rest of the properties, the share is granted to the plaintiff. 4. The plaintiff has assailed the Judgment of the lower appellate Court in respect of non grant of share in G.No. 523, 489 and 208 and house No. 3232/1. 5. Mr. S.P. Shah, the learned counsel for the appellant strenuously contended that the lower appellate Court has failed to consider the attending circumstances and the high probative value of the mutation entry in respect of the mutation of the name of the plaintiff in the revenue record that too in the ownership column. According to the learned counsel, if the plaintiff was not the owner of the property or the joint purchaser, his name would not have been mutated in the revenue record. According Mr. Shah, as he was the joint owner of G.No. 523 and House No. 3232/1, defendant no. 1 allowed the name of the present appellant to be entered in the revenue record. This circumstance has not been considered by the lower appellate Court in its correct perspective. 6. Mr. Shah further submitted that the entry of the name of the present appellant in the ownership column in the revenue record would have the presumptive value or at least high probative value to prove his case of joint purchase. He has further submitted that it is not disputed that since 1972, the 3 plaintiff is in Govt. service. If the plaintiff would not have purchased the property jointly with the defendant, then his name would not have been entered in the revenue record as in respect of other properties. According to the learned counsel, such an act of both the parties is sufficient to prove the case of the plaintiff by preponderance of probabilities. 7. Per contra, Mr. R.P. Dhaware, the learned counsel holding for Mr. U.S. Malte, the learned counsel for the respondents submitted that the Court below on appreciation of evidence, has come to probable conclusion. There is no perversity in the appreciation of the evidence. In such circumstances, no interference is called for in the Second Appeal. 8. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments passed by both the Courts. 9. The present Appeal is restricted in respect of House No. 3232/1 and agricultural land bearing G.Nos. 523, 489 and 208. The title deeds in respect of these 4 properties stand in the name of defendant nos. 1 and 2 i.e. in respect of agricultural lands in the name of defendant no. 1 and in respect of house property in the name of defendant no. 2, whereas in revenue record, the name of plaintiff is mutated along with defendant no. 1 in respect of land G.No. 523 and in House No. 3232/1 along with defendant no. 1. 10. No doubt, the mutation in the name of plaintiff would be one of the 4 corroborative piece of evidence to substantiate the case of the plaintiff regarding the joint purchase. But, that in itself would not be a substitute to prove the contribution by way of consideration. It is trite law that the person in whose name the title deed stands is the owner of the property and the burden is on the person claiming otherwise. It is not the case that from the joint family funds, the property has been purchased, but the case of the plaintiff is that the property has been jointly purchased by the plaintiff and the defendant no. 1. As such, when the plaintiff comes with a case that it is jointly purchased by the plaintiff and defendant no. 1, the proof about contribution of the consideration is required to be shown. No such evidence about contribution of consideration amount is coming forth. The lower appellate Court has also considered that when the property was purchased jointly by the plaintiff and defendant no. 1, the title deed stood in the name of plaintiff and defendant no. 1 in respect of G.No. 476, 486 and 488 and also House property 3225/A. The lower appellate Court has taken this as one of the circumstances to come to the conclusion that whenever the joint purchase was made, it was in the name of the plaintiff and defendant no. 1, whereas in respect of the properties, which are subject matter of the Second Appeal, i.e. G.No. 523, 489 , 208 and House No. 3232/1, the title deeds do not show the plaintiff as the purchaser. The Court, on appreciation of evidence, has come to the plausible conclusion. Just because the mutation entry was effected in respect of 2 properties, in the name of the plaintiff along with defendant no. 1, that in itself would not prove the joint purchase in absence of proof of the contribution of consideration amount. 5 11. As the view taken by the lower appellate Court is a plausible and probable view, no substantial question of law arises. In light of the same, the Second Appeal is dismissed, however with no order as to costs. 12. In view of dismissal of the Second Appeal, the Civil Application does not survives and accordingly disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 612.10