1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 262/2008 Bhaskarrao s/o Balwantrao Ashtikar, Age : 73 years, Occupation : Nil, R/o Gandhi Park, Parbhani, Tq. & Dist. Parbhani. Died through L.Rs. 1A Laxmibai Bhaskarrao Ashtikar, Age : 69 years, Occu. Household, 1B Balkrishna Bhaskarrao Ashtikar, Age : 49 years, Occu. Pensioner. 1C Jaywant Bhaskarrao Ashtikar, Age : 39 years, Occu. Service, 1D Yeshwant Bhaskarrao Ashtikar, Age : 35 years, Occupation : Advocate. All R/o Gandhi Park, Parbhani, Tq. Dist. Parbhani. 1E Meera Avinash Nakade (Undhekar), Age : 43 years, Occu. Household, R/o Shivaji Nagar, Parbhani. ....Appellants. Versus 1 Vasant s/o Balwantrao Ashtikar, Age : 61 years, Occu. Nil, R/o Rangnath Maharaj Nagar, Parbhani. 2 2 Smt. Subhadrabai w/o Balwantrao Ashtikar, Age : 74 years, Occu. Household, R/o As above. 3 Ramkrishna s/o Vasudeorao Ashtikar, Age : 62 years, Occu. Nil, R/o Gandhi Park, Parbhani. 4 Mohini w/o Dattatraya Ashtikar, Age : 26 years, Occu. Education, R/o Chidrawar Nagar, Parbhani. 5 Prasad s/o Dattatraya Ashtikar, Age : 30 years, Occu. Business, R/o Chidrawar Nagar, Parbhani. 6 Aparna d/o Dattatraya Ashtikar, Age : 27 years, Occu. Nil, R/o As above. 7 Sakharam s/o Keshavrao Ashtikar, Age : 58 years, Occu. Education, R/o Parali Vaijnath, Dist. Beed. ...Respondents. Mr. Milind M. Patil (Beedkar), Advocate for appellants. Mr. P.N. Kalani. Advocate for State. CORAM : A.V. NIRGUDE, J. Date : 29th July, 2010. ORAL JUDGMENT :- 1 This second appeal is filed against the concurrent finding recorded by the Courts below. The respondents No.1 to 7 were plaintiffs in the trial Court. The appellants and respondent No.7 were the defendants. It is common ground that the predecessors of all these persons were members of joint Hindu family and had several pieces of ancestral properties. The parties are children and grand children of four brothers namely Balwant, Shridhar, 3 Keshav and Wasudev. It is not in dispute that in 1972 partition took place between the parties. However, the particulars of the partition, has not been brought on record. 2 The present dispute relates only to two house properties, situated at Parbhani. It was the case of the respondents No.1 to 6 plaintiffs that these two house properties remained joint properties of all the co-parceners except the respondent No.7 who in 1973 claimed and got his separate share in one of the houses property. The original defendant No.2 Sakharam did not oppose this suit but the appellant the original defendant No.1 opposed the suit saying that in 1972's partition, these two houses came to his share, except the portion allotted to the respondent No.7 Sakharam. 3 The Courts below did not accept his case and held that though in 1972 the partition took place, these two houses except north-west portion of the respondent No.7, the suit properties till filing of the suit, remained joint family properties. Surprisingly even the appellant in his written statement admitted that in 1973 when Sakharam filed suit for partition and when compromise took place in that suit, the north -west portion of one house was given to Sakharam and remaining portion of the house remained common. In the other part of the written statement, the appellant took up stand that in 1972 partition, he was allotted the remaining portion of the houses as his share. The stand taken by the appellant in written statement itself, is rather contradictory. Assuming that he did not admit that the suit houses remained joint property of the remaining co-parceners, the burden to prove that in the partition of 1972, the suit property came to his share, was on the shoulder of the appellant. 4 Unfortunately, the Courts below held that he could not prove the said assertion. In view of this, Mr. Patil learned advocate appearing for appellant admitted that if the event of partition in 1972 admitted by all the co- 4 parceners, they were under obligation to prove that after 1972 there occurred re-union of the family and due to such re-union, the suit houses came in the hotch pot of joint family property. I am afraid the appellant can not expect this from the respondents No.1 to 6 plaintiffs. Because as said above, the appellant was under obligation to prove that in 1972 the suit property was subjected to partition and the same came to his share, in absence of such evidence, the presumption of jointness of the family should prevail. The appeal does not give rise to any substantial question of law. ORDER The appeal stands dismissed. (A.V. NIRGUDE, J) tsk/sa262.08