1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.37 OF 2011 Kamlakar Dasharath Wani .... APPELLANT V E R S U S Madhukar Dashrath Shirude & another .... RESPONDENTS Mr.S.P.Shah ,Advocate for the appellant. CORAM : S.V. GANGAPURWALA, J. DATE : 14/03/2011 ORAL ORDER : 1. Heard learned counsel for the respective parties. 2. This is plaintiff’s Second Appeal. The plaintiff had filed Suit for declaration and possession in respect of the suit properties as detailed in the plaint. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court dismissed the Appeal confirming the Judgment and decree passed by the trial Court. The plaintiff has assailed said Judgment in the present Second Appeal. 3. Mr. S.P.Shah, the learned counsel for the appellant strenuously 2 contends that the Court below have adopted wrong approach to the case. The facts of the case are self-eloquent. The suit properties are purchased in the year 1980-1984 for consideration of Rs. 3,000/- and Rs. 30,000/- respectively. As the defendant no. 1 had shifted to Dhule who is the real brother of the plaintiff, the plaintiff purchased the suit properties in the name of defendant no. 1 and himself to honour the orders of their father. The learned counsel further contends that defendant no. 1 had no source of income to contribute nor have pleaded to that effect. The pleading was that the property was purchased from the income of the agricultural land admeasuring 30 Acres of the joint family. As the income was not ;sufficient from the agricultural property, the brothers had shifted to Dhule. This fact itself shows that the income from the agricultural land was not sufficient even to maintain the family as such no question arises of purchasing the suit property from the income of the agricultural land. As such, necessarily, the property was purchased from the income of the plaintiff, who had joined service in the year 1973 with Pratap Mill as a Technical Assistant. The defendant no. 1 had joined the service as a casual labour only in the year 1979. This fact itself shows that the defendant no. 1 could not have contributed. Even the wife of the plaintiff had started small business. Mr. S.P. Shah, the learned counsel submits that all these facts would substantiate the case of the plaintiff that it was only the plaintiff who had 3 purchased the property and who had contributed for the payment of the consideration amount for the said property. 4. Mr. S.P.Shah, the learned counsel for the appellant further contends that even if the family is joint, there is no presumption that the property held by any member is a joint family property nor it can be presumed that the property is purchased from the income of joint family property unless sufficient nucleus is shown and for that purpose sufficient evidence is required to be shown that the property was yielding income and the same was sufficient for the purchase of the property. For the said purpose, the learned counsel relies on two ( 2 ) Judgments of the Apex Court in the case of Mudi Gowda Gowdappa Sankh V/s Ram Chandra Ravagowda Sankh reported in 1969 (1) Supreme Court Cases – 386 and in the case of D.S. Lakshmaiah and another V/s L.Blasubramanyam and another reported in AIR 2003 Supreme Court – 3800. 5. With the assistance of the learned counsel, I have gone through the Judgments delivered by both the Courts and also the part of the pleadings and depositions. 6. The proposition of law that there is a presumption of joint 4 family, but no presumption that the property held by individual is joint family property, need not be dilated as the same is a trite law. 7. In the present case, the property in question does not exclusively stand in the name of plaintiff. The said property is purchased in the name of plaintiff and defendant no. 1. As such, the said legal proposition would not be squarely applicable in the present case. The sale deeds of the suit properties are standing in the name of plaintiff and defendant no. 1 since the date of its purchase. Even the construction has been made over the suit property in the year 1985. The property stands in the name of plaintiff and defendant no. 1. The defendant has categorically stated that the suit properties are joint family properties and purchased from the income of joint family. No person would ordinarily plead and depose against his own interest. Though the properties were standing in the name of defendant no. 1, he conceded that the same was purchased from the income of the joint family property. The Courts below on appreciation of evidence has come to the said conclusion. There is nothing on record to show that for the construction of the house, the plaintiff alone had contributed. Even otherwise, the plaintiff could not have claimed exclusive ownership over the suit properties for the first time in the year 2005. The defendant nos. 1 and 2 together are residing in one of the suit property 5 and the plaintiff in the another suit property since long time. The overt acts on the part of the defendants also substantiates the view taken by the Courts below. The Judgments relied by the learned counsel for the appellant in the case of Mudi Gowda and D.S. Lakshmaiah referred supra may not be strictly applicable in the present case for the reason that the property does not stand individually in the name of the plaintiff and more over the Courts on appreciation of evidence have found that the sufficient nucleus existed. 8. The view taken by the Courts below is a possible view. The Second Appeal can not be entertained only on the ground that some other view may also be possible. 9. In that light of the matter, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 10. In view of dismissal of Second Appeal, Civil Application does not survive and is also dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 37.2011 6