1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 687 OF 2009 Pandharinath Parashram Shelke (deceased through LRs) .. APPELLANTS VERSUS Parashram Bhikaji Shelke & others .. RESPONDENTS Mr. C.V. Korhalkar, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. DATE : 15 th October, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit claiming declaration and possession. According to plaintiff, half northern portion of house no. 147 and 148 (new numbers 189 and 190) of village Shirdi is the property in dispute. Defendant no. 1 is the father of plaintiff and defendant nos. 2, 3 and 4 are his real brothers. According to plaintiff, partition of the property has taken place in the year 1957-1958 and since the date of partition, plaintiff and defendants are 2 residing separately and are cultivating their landed property. It is also contended by the plaintiff that defendant no. 1 had also filed suit for re- partition of the property being Regular Civil Suit no. 1379/1978 contending that there was unequal distribution of the shares. According to plaintiff, he purchased northern portion of the suit house from one Bhausaheb Kote for consideration of Rs.8,500/-. Southern half portion of the same house was purchased by defendant no. 1 under registered sale deed dt. 27-12-1972 for Rs.11,000/- from one Baburao Kote. Defendant no. 1 and plaintiff were having cordial relations. Considering the request made by defendant no. 1, plaintiff permitted him to run lodge in the premises. Defendant no. 1 being the father of the plaintiff had trust in him and did not ever ask him to submit the account of income and expenses. According to him, defendant nos. 2, 3 and 4 have taken undue advantage of old age of defendant no. 1 and have got executed will -deed from him on 30-8-1988. Defendants have also secured one rent note from defendant no. 1 in respect of the suit property. Plaintiff came to know about execution of the document and issued notice to defendants. According to him, rent note executed by defendant no. 1 in favour of other defendants is illegal and he is entitled to be declared as owner and possessor of the suit property. 3 3 Defendant no. 1 filed written statement and controverted the contentions raised by the plaintiff. According to him, while effecting partition of the property, suit house was kept with him for his maintenance. According to defendant no. 1, he has spent amount for renovation of house no. 147 and 148 with an intention to run lodge in the premises and to secure income for his maintenance. Defendant contends that he has executed rent note on 30-8-1988 in favour of other defendants. According to him, plaintiff is not entitled to ask share in the property. 4 Considering the rival contentions raised and after receiving the evidence led by the parties, trial court was pleased to decree the suit in favour of the plaintiff partly. It is declared by the trial court that defendant no. 1 has no entitlement to execute the will -deed in respect of the property and the will-deed executed is not binding on the plaintiff. Claim raised by plaintiff for recovery of possession of the suit property is dismissed. Judgment and decree passed by the trial court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal no. 290/1990. Appeal came to be heard and disposed of by the Additional District Judge , Ahmednagar who was pleased to dismiss the same by judgment dt. 12-3-2001. 4 5 I have perused the judgments delivered by both the courts below. It is the contention of the plaintiff that in 1958 there was partition amongst the brothers and there was also re-partition of the property at the instance of one of the co-parceners of the joint family property. Suit property is purchased on 8-12-1972 in the name of plaintiff. So far as prior partition of 1958 is concerned, the courts below have recorded finding that infact, there was no partition in the year 1958 and obviously there was no partition in respect of the residential properties in the year 1958. The courts below have recorded finding that on perusal of evidence it transpires that the plaintiff has failed to establish that he was separate in residence till 1978. On the contrary, plaintiff has admitted in his cross examination that defendant no. 1 was residing with all the brothers till 1978. Plaintiff has further failed to establish his case that he was residing alone since 1958 till 1978. So far purchase of the disputed property is concerned, it has been recorded by the courts below that prior to purchase of the suit house, plaintiff no. 1 brought Rs.2,000/- from the account of defendant no. 1. It has also been found that an amount of Rs.8,000/- was withdrawn from the firm M/s Nanuram Fandulal and the same amount was utilised for purchase of the property. Withdrawal of amount by plaintiff from the account of his father was just a day prior to execution of the sale-deed. Thus, it cannot be said 5 that the property has been purchased by plaintiff by utilising his separate income. The courts below were therefore justified in recording finding that the property purchased by plaintiff is not his exclusive property and the same has been purchased by applying the funds which the plaintiff had borrowed on behalf of his father. The fact that there was re-partition in the year 1978 itself supports the contention of the plaintiff that there was previous partition effected in the year 1958. It also appears that agricultural properties purchased after 1958 in the name of defendant no. 1 were also put to partition and plaintiff had also received share in the said properties. Share in the agricultural land is admittedly not given to defendant no. 1. Thus, the courts below have recorded finding that the partition had taken place between plaintiff and defendants is in the year 1978. Thus, the property purchased in 1972 during the jointness of the family is obviously the property belonging to the joint family. Reasons recorded by the courts below appear to be proper based on appreciation of evidence placed on record. Concurrent findings recorded by the courts below on appreciation of evidence need not be interfered with in exercise of powers under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. Appeal is devoid of substance hence, stands dismissed summarily. 6 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa687.09.odt