1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.305 OF 2006 Yeshwant Bala Mali ..... Appellant vs. Pandit Dnyanu Mali ..... Respondents thru’ LRs Mr.T.S. Ingale, Advocate for appellant. Mr.Vikas Mali, Advocate for respondents. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 16th December, 2009. PC : 1. Being aggrieved by the judgment and decree dated 20th December 2001 passed by the District Court, Islampur, Sangli, the appellant files this Second Appeal. It is contested by respondent no.1 alone. 2. The short facts leading to the present proceedings are as follows: One Kusha was the owner of several properties including house properties at 37-A, 37-B, 38-A, 38-B and 39, which are subject matter of the present proceedings. Kusha died leaving three sons, Bala, Govind and Maroti. In the year 1981, the appellant who represents the branch of Bala filed the suit herein for partition and separate possession of the above house properties (the suit properties). It is his case that the partition of all the 2 ancestral properties except for the suit properties took place long back. The plaint is silent as regards the particulars of the partition including the date or year of the partition. The evidence led by parties shows that the partition between the three brothers Bala, Govind and Maroti had taken place in the year 1900. The appellant alleges that the suit properties continued to be joint and Govind was permitted to occupy the same, as he was without any house at the relevant time. The Gram Panchayat record shows that presently house no.37-A and 37-B stands in the name of the appellant. House No.38-A stands in the name of respondent no.1 and house no.38-B stands in the name of respondent no.2. Respondents no.1 to 4 represent the branch of Govind. House No.39 stands in the name of respondent no.5, who represents the branch of Maroti. Thus the three house properties independently stand in the names of members of the three branches of Bala, Govind and Maroti. As per the appellant, the properties stand in separate names only for the purpose of convenience and not due to partition of the same. These revenue records have been so standing and the members of the respective branches paying Gram Panchayat taxes therefor since the year 1947-1948. The appellant contends that though Govind was permitted to occupy the house properties, as he did not have his own house, the appellant has been using a portion of the property which is an open space for teethering his cattle and for dung-pit. This according to the appellant negates partition of house properties. 3 3. The suit was contested by respondent no.1 alone and it proceeded exparte against respondents no.2 to 4. Respondent no.5 filed his written statement but did not lead evidence. Respondent no.1 denied that the partition that had taken place between three brothers was partial partition. According to him, all the properties including house properties were partitioned and the members of the three branches have been enjoying the same separately, since the date of partition. According to respondent no.1, in the partition, the house property no.37-A and 37-B went to the share of appellant. House No.38-A and 38-B went to the share of Govind and house property No.39 to the share of Maroti. It is thus seen that respondent no.1 is not claiming any share in the house properties 37-A, 37-B and 39. In the alternative, respondent no.1 contended that in the event the Court treated the suit properties as joint family properties, house no.31 standing in the name of the appellant should be included in the suit properties for the purpose of the division and separate possession. 4. Though the pleadings as regards the date of partition are not clear, both the sides agreed that partition was effected in the year 1900. They produced PTR extracts of the house properties showing that the same are standing in the names of different persons and also the revenue records in respect of the agricultural properties. The evidence included evidence of payment of taxes being the receipts issued by Gram Panchayat from 4 the year 1948 onwards. The trial Court decreed the suit holding that respondent no.1 had failed to establish that the partition of the properties that took place in the year 1900 was total and not partial. According to the trial Court, since the appellant had come to the Court with a case of partial partition, which was disputed by respondent no.1, the entire onus of proving that the partition was partial was upon respondent no.1 and respondent no. 1 had failed to discharge the burden. 5. The appeal Court opined that the trial Court lost sight of the principle that when partition is admitted or proved, there is presumption that all the properties were divided and the person who alleges that the family property in exclusive possession of one of the members after the partition is joint and is liable to be partitioned, must prove it. Therefore the entire burden was upon the appellant to prove that the suit property was kept for joint enjoyment in the partition that was effected in the family. The appeal Court further took note of the fact that the pleadings of the appellant as regards partition in the plaint are vague and without necessary particulars. The appellant neither names the properties divided nor gives the dimensions of the five house properties. It noticed the evidence of the revenue records in respect of the properties being PTR extracts of Gram Panchayat, the tax registers and receipts for payment of taxes by the members of the three branches, to observe that though the revenue and tax registers are not documents of title, the entries made therein are 5 incidents of ownership of a person. Likewise payment of tax is also the incident of the ownership of a person and the person can draw support to his claim of ownership by producing extracts of revenue and tax registers and tax payment receipts. The appellant has been paying taxes for Gram Panchayat house No.31, 37-A and 37- B since the year 1947-1948. Respondents no.1 and 2 have been paying taxes for the properties at 38-A and 38-B respectively for the same period and respondent no.5 for house property no.39. This, according to the appellate Court, on the background of no evidence whatsoever of partition, belied the case of the appellant and supported the case of respondent no.1. With this evidence, the appellate Court held that the claim of appellant of possession of a portion of the suit properties would mean possession of the property 37-A and 37-B. The lower appellate Court has rightly noted the legal principle that when there is partition of joint family property, a presumption arises that the entire property was divided and the person who alleges that any property was left to be partitioned was required to establish the same. The trial Court was clearly in error of casting the burden of proving that the partition was total upon respondent no.1, which error has been corrected by the appellate Court in the impugned order. There is no evidence whatsoever produced by the appellant to show that the partition was partial. This coupled with admitted separate occupation of the house properties and the Gram Panchayat record showing that the properties have been standing separately in the 6 names of three members of the three branches for about 60 years was sufficient to hold that the partition was total. The appeal Court has rightly appreciated that though the revenue records do not create or extinguish rights in the properties, the same are incidents of separate possession and the Court must take notice of the long standing revenue records and give due weightage to the same. Thus the first appellate Court has rightly appreciated the facts of the case, the evidence led by the parties and correctly applied the law to the same to arrive at its decision. There is no need to interfere with the same. There is also no substantial question of law arising for consideration of the Court. Hence, the Second Appeal is dismissed. (Smt.R.P. SondurBaldota, J.)