hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE SECOND APPEAL NO. 605 OF 2011 Shri. Vithabai Yalu Rayate and Ors. ... Appellants Versus Shri. Chabu Ragho Rayate and Ors. ... Respondents Mr. P.N. Joshi Advocate for the appellants. CORAM : A.S. OKA,J. DATED : NOVEMBER 17, 2011 P.C. Heard the learned counsel for the appellants. 2. The appellants are the original defendant nos. 1 to 5. The respondent No. 1 to 7 are the original plaintiffs. The trial Court passed a decree for partition and separate possession. The said decree has been confirmed in the appeal preferred by the appellants. 3. The case made out by the plaintiffs was that one Gopala was the common ancestor of the parties. He had three sons by the name Shripat, Valu and Ragho. The plaintiffs are the sons and daughters of said 1 hvn Ragho. The defendants are the legal representatives of said Valu. 4. The suit for partition was defended by the appellants by filing a written statement. The contention in the written statement was that somewhere in the year 1940, there was partition effected between Valu and Ragho. It was contended that father of the appellants was an agricultural tenant in respect of some of the suit properties and his name consistently appeared in the revenue record as the tenant and therefore, the suit properties cannot be subjected to partition. 5. Both the Courts disbelieved the case of the appellants that there was a partition in the year 1940 and that certain lands were self acquired properties of Valu, father of the appellants. 6. The learned counsel for the appellants submits that the evidence on record shows that some of the suit lands were held by the father of the appellants as a tenant. He pointed out the findings of the Courts below where a reference has been made to mutation entries placed on record by the appellants to show that the name of Valu, the father of the appellants appeared in the record of rights as the tenant. The submission is that the said suit properties ought to have been excluded from the 2 hvn partition. 7. I have carefully considered the submissions. As far as plea of partition in the year 1940 is concerned, the Courts below and in particular, the appellate Court have held that though it was the case of witness Nivrutti examined by the appellants that after effecting partition between Valu and Ragho, an application was made to the Talathi to effect mutation regarding partition and accordingly the mutation was carried out, but the mutation entry was not placed on record. Therefore, the appellate Court has drawn adverse inference against the appellants. Thus it is not possible to interfere with the said finding recorded by both the Courts on the aspect of the partition. 8. Therefore, what follows is that the family continued to be joint which was possessing joint family properties. While dealing with the plea that Valu was exclusively holding certain suit lands as a tenant, the appellate Court has relied upon the admission of the first appellant that Valu was looking after the affairs of the joint family being the elder member of the family and the name of Valu was recored in the record of rights being the elder brother of Ragho. Thus, the finding of fact has 3 hvn been recorded by the Courts below that the appellants failed to establish that certain lands were exclusively held by their father. It is not possible to interfere with the concurrent findings of facts of the courts below. No substantial question of law arises. Second appeal is dismissed. C.A. No. 1458 of 2011 does not survive. The same is also disposed of. (A.S. OKA,J.) 4