1 S.A.NO.33.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 33 OF 1992 1] Basweshwar S/o Hariba Muktapure, Age 24 years occupation Agriculturist, R/o Bhusani Taluka Ausa, District Latur. . Appellant V E R S U S 1] Narshing Apparao Wangage Age 43 years Occupation Agriculture,R/o Bhusani Ta Ausa. District Latur. 2] Nagorao S/o Vyankatrao Kale Age 44 years Occupation Agriculture, R/o Bhusani Tq. Ausa, District Latur. 3] Annapuranabai Gurlingappa Yerte, Age 36 years Occupation Agriculturist,R/o Latur Tq. And District Latur Shivaji Nagar Latur. 4] Bhagwat S/o Digamber Muktapure, Age 21 years U/g mother Shantabai W/o Digamber Muktapure Occupation Agriculturist,R/o Bhusani, Tq. Ausa,District Latur. 5] Navnath S/o Digamber Muktapure, Age 13 years U/g real mother Shantabai W/o Digamber Muktapure Occupation Agriculturist, R/o Bhusani, Tq. Ausa,District Latur. 2 S.A.NO.33.92 6] Shivkumar S/o Narayan Muktapure, Age 20 years Occupation Agriculture R/o Bhusani, Tq. Ausa, District Latur. Respondents ... Mr. M.L.Dharashive,Advocate for Appellant Respondent Nos.1to3-absent Mr. S.V.Chandole,Advocate holding for Mr. V.G.Sakolkar,Advocate for respondent Nos.4& 5 Mr. R.P.Bhoomkar,Advocate for respondent No.6 ... CORAM : A.V. NIRGUDE, J. DATED : 5TH FEBRUARY, 2010 ORAL JUDGMENT 1] This Second appeal is filed against the concurrent findings of the Courts below. 2] Facts leading to the litigation can be narrated in short as under- . The appellant Basweshwar filed a suit on following cause of action. He said that in 1971 his deceased father effected partition of ancestral property of the joint family and allotted the suit land to his share. Despite of this, he said, his father sold the suit land to the original respondent no.1 Narshing in 1976. On the basis of such transaction, the original respondent no.1 dispossessed him. The 3 S.A.NO.33.92 appellant/plaintiff sought declaration that the sale deed was not binding on him. In the alternative, the appellant/plaintiff also said that if partition between him and his father was not proved, then father had no legal necessity to alienate the suit land, which is ancestral joint family property. 3] The respondent no.1 contested the suit and took up a stand that there occurred no partition between the appellant/plaintiff and his father in 1971. He said, in 1976 his father had legal necessity for alienating the suit land to him. The Courts below held that there occurred no partition in 1971 between the appellant/plaintiff and his father. The peculiarity of this case is that when the suit was filed in 1979, the age of the appellant/plaintiff was 10 years and he had filed this suit through his real mother, as guardian. As mentioned above, if the partition had taken place in 1971, the appellant/plaintiff could not have been more than two to three years old. Therefore, there was no possibility that he himself entered into witness box to prove the factum of partition. The Courts below even otherwise did not believe the case of the appellant/plaintiff, which came on record through the deposition of the guardian, as truthful. 4] The burden to prove that the ancestral joint family property was sold for legal necessity was 4 S.A.NO.33.92 squarely of respondent no.1. He led cogent evidence through various witnesses who deposed that during the relevant time the father of the appellant had outstanding debts on account of wedding expenses of his daughter. It has also come on record that at that time his daughter Mahadevi was recently wedded. The second daughter was of marriageable age. The witness stated that they had given loan to the father of the appellant. In view of this, the Courts below held that alienation of the suit land was for legal necessity, therefore, is binding on the appellant/plaintiff. Although, appeal was admitted in 1992, I do not find any substantial question of law in this appeal. The appeal should therefore fail. Hence, the Second Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) MTK/ ok