Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAATE JURISDICTION SECOND APPEAL NO.589 OF 2006 Shankarrao Ramchandra Deswhmukh : Appellant versus Arjunrao Ramchandra Deshmukh & ors. : Respondents. Mr.Macchindra A Patil for the Appellant. Mr.Ajay A Joshi for the Respondent No.1. CORAM : C L PANGARKAR, J DATED : 21st JANUARY 2010 P.C. 1. Heard the learned counsel for the Appellant and the learned counsel for the Respondent No.1. 2. This Second Appeal is filed by the Original Plaintiff after having lost in both the courts below. The Plaintiff instituted a suit being Regular Civil Suit No.198/81 for partition and separate possession of the suit properties. It is the contention of the Plaintiff that the suit properties were joint family properties and were purchased out of the joint family funds. The Defendants resisted the suit and contended that the suit property was purchased from his own income and it is not joint family property. Further it is contended that there was already partition in the year 1970 which was acted upon and as such the suit property is not at all the joint family property and the Plaintiff has no concern with the same. 3. This suit was heard along with the suit filed by the present Respondent No.1 being Civil Suit No.158/81. Both the suits were heard by the learned Judge of the trial Court together. The learned trial judge dismissed the suit filed by the present appellant while he decreed the suit filed by the defendant being Civil Suit No.158/81. The present appellant preferred only one appeal before the District Judge . When that appeal came up for hearing before the learned District Judge, a statement was made before the first appellate court that the appellant has preferred only one appeal against the order in Suit No.198/81 and, the decree in Suit No.158/81 is not being challenged. Obviously the decree in Suit No.158/81 has become final 4. The first appellate court concurred with the findings given by the trial Court that there was partition in the year 1970 and the suit property was not a joint family property. Holding so, the learned judge of the first appellate court dismissed the appeal. Feeling aggrieved by the said order, this second appeal has been preferred. 5. The learned counsel for the Appellant submits before me that the finding recorded by both the courts below that there was partition in the year 1970 was not correct. According to him, the said partition was a nominal partition which was never intended to be acted upon and this fact can be said to be proved by a letter dated 18th September 19970 which was said to have been written by the Respondent No.1 to the Plaintiff. The learned counsel for the Appellant submits that the contents of the said letter dated 18th September 1970 would themselves go to show that the Respondent No.1 in fact did not want to be separated from the family and partition was only effected in order to over come certain provisions of law. It seems that both the courts below have considered the said letter. 6. The learned counsel for the Respondent No.1 submits that the said letter does not seem to be a part of the record of these proceedings because that is not exhibited. The record is not before this Court. However, it is clear from the observations made by the courts below that the said letter was considered by both the courts below. The letter has been considered by both the courts below and they have come to a conclusion that the said letter at the most would go to show that the respondent No.1 wanted to live jointly with the plaintiff. The said letter has been interpreted by the learned judges of both the courts below and that has become findings of fact. There are two concurrent findings, those cannot be interfered with by this Court. 7. The learned counsel for the appellant then submits that in order to over come the provisions of Ceiling Act, the partition deed of 1970 was effected to. The learned Judges of both the courts below have considered this aspect and held that that could not be the reason since all parties held equal land. Had the land been purchased in the name of the Plaintiff, it would have exceed the limit. My attention was drawn by the learned counsel of the Respondent No.1 to the observation of the first appellate court that even the land Survey No.535/2A/A though was purchased prior to the partition, the consideration is shown to be paid by the Respondent No.1 and was therefore not subject matter of partition. Had it been a joint family property, that too would have been included in partition. The learned judge of the first appellate court has considered that fact . It is not shown to me that any part of appreciation of evidence borders perversity. In the circumstances, what was urged before me was all question of facts and no question of law is urged before me. There is therefore no substance in this second appeal and the same is dismissed in limine. [C.L.PANGARKAR,J]