1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE SECOND APPEAL NO.195 OF 2010 Khanderao Aba Patil, since deceased by heirs: 1) Bhagirathibai Khanderao Patil & Ors..Appellants V/s Bhimrao Aba Patil & Ors. ..Respondents Ms.A.R.S.Baxi for the Appellants. Mr.Vilas Kolekar for the Respondents. CORAM: R.G.KETKAR, J. DATE: 8th July, 2010. P.C.: 1.This appeal is preferred by the original Defendants challenging the judgment and decree dated 28th January, 2010 passed by the learned District Judge, Sangli in regular Civil Appeal No.584 of 1995 arising out of judgment and decree dated 16th November, 1995 passed by the learned Civil Judge, Junior Division, Tasgaon in regular civil suit No.75 of 1982. By the impugned judgments, the Courts below decreed the suit instituted by the Respondent No.1- original plaintiff for partition and separate 2 possession. The parties shall be hereinafter referred as per their original status in the trial Court. 2.It is the case of the plaintiff that he, Defendant No.1-Khanderao (since deceased), Defendant No.2-Dhondubai and Defendant No.3- Ganubai are the children of Aba Patil. The property bearing Revision Survey No.500/1 (Gat No.2273) situate at Paluj and the house property bearing Gram Panchayat No.50 (CTS No. 2031) situate at Paluj are the ancestral properties of the plaintiff and the Defendants. Their father Aba Patil died sometime in the year 1961 leaving behind the plaintiff, Defendant No.1-Khanderao, Defendant No.2- Dhondubai and Defendant No.3-Ganubai. Defendant No.1-Khanderao is the eldest among them. It is his case that he was employed in the police department and Defendant No.1 being eldest among them, he was managing the joint family properties. The land bearing Gat No.2259 was purchased in the name of Defendant No.1 from 3 one Vishnu Patil. The said land was purchased in the life time of their father Aba Patil and the family was also joint. The said land was purchased for Rs.1500/- by sale deed dated 14th April, 1960. On these among other assertions the suit was instituted for partition and separate possession. 3.The Defendant No.1 Khanderao filed written statement inter-alia contending that the partition between the plaintiff and the Defendants took place long back and after severance of their status, Gat No.2259 was purchased by him. It is his self acquired property and consequently the plaintiff has no right, title and interest in respect of the said land. The parties led oral as well as documentary evidence. On the basis of material on record, the trial Court decreed the suit. Against that, the heirs of Defendant No.1 Khanderao preferred appeal which came to be dismissed. It is against these judgments, the present second appeal is preferred. 4 4.In support of this appeal, Ms.Baxi, submitted that in the first place, the plaintiff has not pleaded that the joint family had nucleus and that Gat No.2259 was purchased from the income of the joint family properties. The plaintiff has also not substantiated the said claim during the evidence. As against this, the witnesses examined on behalf of the Defendant No.1 established that the Khanderao was doing mesonary work and after partition, he had acquired Gat No.2259 which is his self acquired property. It was further submitted that the 7/12 extract also indicates that the plaintiff and the Defendant No.1 were cultivating Gat No.2273 separately which implies that there was partition between the plaintiff and the Defendants. On the other hand Mr.Vijay Patil for Respondent No.1 supported the impugned judgments. 5.After hearing the learned counsel for the parties and considering the material on record, I find that the Courts below considered the 5 evidence led by the parties and decreed the suit. Plaintiff Bhimrao, deposed that the land bearing Gat No.2259 was purchased for Rs.1500/- and the amount of consideration was paid from his savings from his job and the family properties. In the cross-examination, it was suggested to him that in the partition he received ½ portion of Gat No.2273, which he denied. He further admitted that Khanderao, since deceased, was working as meson and he was a skilled worker. He however, denied that the Khanderao purchased Gat No.2259 out of his independent income from northern portion of Gat No.2273 and from the mesonary work and by borrowing loan from others. 6.In so far as evidence led by the witnesses of the Defendant No.1 is concerned, they admitted that ancestral land bearing Gat No.2273 was of rich quality and there was sufficient income to their family. Baban, son of Khanderao also admitted that his grand-father was not indebted to others till his death. Both the Courts on 6 appreciation of evidence recorded the findings of facts to the effect that there was no partition in the family and that deceased Khanderao did not establish that the Gat No. 2259 is his self acquired property. I do not find that the Courts below committed any error in arriving at this conclusion. The findings are based upon the evidence on record, and it cannot be said that the Courts below misred the evidence. Second Appeal does not involve any substantial question of law. Second appeal is therefore dismissed. However, there shall be no order as to costs. 7.In view of dismissal of the Second Appeal, nothing further survives in the Civil Application No.592/2010, and the same also stands dismissed. 8.On the oral application made by Ms.Baxi, operation of this order is stayed for a period of eight weeks from today. (R.G.KETKAR,J.)