1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 355 OF 2002 WITH CIVIL APPLICATION NO.466 OF 2002 Janbhau Appaji Hajare : Appellant versus Eknath Shankar Hajare and ors. : Respondents. Shri. M.S.Lagu for the Appellant. Shri.G.S.Godbole for the Respondent Nos.1, 3 to 5. None for the Respondent Nos.2, 6 and 7 though served. CORAM : R.M.SAVANT, J. DATED : September 17, 2008 P.C. 1. This Second Appeal takes exception to the Judgment and Decree dated 25/06/2001 passed by the learned IVth, Additional District Judge, Pune by which the Judgment and Decree dated 19/11/1996 passed by the trial Court i.e the Civil Judge, Junior Division, Khed came to be confirmed. 2. The Appellant is the original Defendant No.1 in Regular 2 Civil Suit No.198 of 1987 filed by the Respondents herein for partition and separate possession of the Respondents/Plaintiffs' share in the properties described in Para 1 of the Plaint. 3. The properties mentioned in Para 1-A of the plaint were referred to as the `ancestral lands' and the properties mentioned in para 1-B of the plaint were referred to as the 'purchased lands'. The Plaintiffs and the Defendants trace their lineage to one Appaji Vithu Hajare. The said Appaji died on 22.11.1984 leaving behind him the Plaintiffs and the Defendants as his heirs. It is the case of the Plaintiffs that the suit lands mentioned in para 1-A of the plaint are their ancestral properties whereas the suit lands mentioned in para 1- B of the plaint are the lands purchased out of the joint family funds which were purchased in the name of Defendant No.1. It is the case of the Plaintiffs that some of the lands viz the lands at Sr.Nos. 3 to 9 in para 1-B of the plaint were originally the tenanted properties which were in possession of the joint family and on Tiller's Day their father Appaji became the deemed purchaser of the tenanted lands. On the said lands being resumed by the Collector. the Plaintiffs applied for 3 re-grant of the said tenanted lands of the joint family. An application for re-grant was made in the name of the Defendant No.1 as Karta of the family. The said tenanted lands were re-granted in the name of the Defendant No.1 but the amount to be paid for the said re-grant was paid out of the joint family funds. In so far as suit lands mentioned in para 1-B of the plaint are concerned, they are the joint family properties and not the self-acquired properties of the Defendant No.1 The Plaintiffs claimed to have 4/5th share in the suit properties which the Defendant No.1 refused. Hence the said suit came to be filed by the Plaintiffs for partition and separate possession. 4. The Defendant No.1 filed his written statement and admitted that the suit properties mentioned in para 1-A of the plaint are the ancestral properties of the Plaintiffs and the Defendants. However, he categorically denied that the suit lands mentioned in para 1-B of the plaint were purchased from the joint family funds. He denied that the Plaintiffs and the Defendant Nos.2 and 3 have any share in the suit lands mentioned in para 1-B of the plaint. It was the case of the Defendant No.1 that he was running a Kirana i.e. Grocery 4 shop and was also doing onion and potato business and the properties mentioned in para 1-B of the plaint were purchased from his own earnings and therefore, the same were his self-acquired properties. The Defendant No.1 also contended that the tenanted lands were re-granted in his name in his individual capacity and he has paid the price from his own earnings. The Defendant No.1 therefore contended that the Plaintiffs are not entitled to the reliefs sought in the said suit. 5. The parties went to trial. The trial Court, on the basis of oral and documentary evidence, came to a conclusion that the Defendant No.1 did not have the financial wherewithal to purchase the suit properties mentioned in para 1-B of the plaint. The trial Court has considered the Defendant No.1' own admission that the income from the grocery shop was Rs.200/- to 300/- per month and that since the properties were purchased by three sale deeds for Rs.2,000/-, Rs.5,00/- and Rs.5,00/-, did not accept the said case of the Defendant No.1 that they were his self acquired properties. The trial Court further held that considering the net income of the joint family 5 which was Rs.20,000/- to Rs.25,000/- per year, it would have to be held that that said properties were purchased out of the joint family income. The trial Court also took into consideration the admission of the Defendant No.1 in his evidence where he has categorically admitted that there was no partition between him and in his brothers in the year 1968, though that was his case earlier in the said suit. The trial Court, therefore, decreed the said suit. 6. The matter was carried in appeal by the Defendant No.1 by filing Regular Civil Appeal No.1201 of 1996. The Lower Appellate Court confirmed the findings of the trial Court as regards the properties mentioned in para 1-B being purchased out of the nucleus of the joint family, as also the finding that the Defendant No.1 did not have the financial wherewithal to purchase the said properties. The Lower Appellate Court, therefore, confirmed the decree passed by the trial Court. 7. Both the Courts below have recorded findings of fact and have concurrently held against the Defendant No.1 and in favour of 6 the Plaintiffs, in my view, the above Second Appeal does not raise any substantial question of law and is accordingly dismissed. 8. In view of the dismissal of the Second Appeal, the Civil Application No.466 of 2002 does not survive and the same is disposed of as such. [R.M.SAVANT, J]