1 SA 646.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 646 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.Milind M.Patil (Beedkar),Advocate for the appellant. Mr. S.S.Bhise, Advocate for the respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 20/04/2011 PER COURT : 1. This is an Appeal by the original defendants. The respondent had filed Suit for declaration that he is the owner and possessor of the suit property and for injunction. The trial Court decreed the Suit. The defendants preferred Appeal. The appellate Court dismissed the Appeal confirming the Judgment and decree passed by the trial Court. The defendants have assailed the said Judgment in the present Second Appeal. 2. Mr. Milind M.Patil (Beedkar), the learned 2 SA 646.2010 counsel for the appellant strenuously contends that the finding of the Courts below on memorandum of partition is perverse in as much as the evidence in that regard has not been considered. The learned counsel also contends that the finding has been given merely on the basis of comparison of signatures without resorting to the provisions of Section 45 and 46 of the Indian Evidence Act. According to the learned counsel, all the brothers have categorically come with the case that the partition was effectuated in the year 1989. The memorandum was reduced and the mutation to that effect was also effected in the year 1996. In view of this documentary evidence, the Court below could not have relied upon the oral evidence of the plaintiff as he is interested witness. The Court could not have passed its decision merely on the comparison of the signature of the plaintiff on the said memorandum and the other documents. Even the circumstances on record show that the properties were purchased from the joint family funds and later on in the year 1989 there was separation and the plaintiff was not given the suit property. All these aspects have not been considered by the Court blow. 3. Per contra, Mr. S.S. Bhise, the learned counsel for the respondent contends that both the 3 SA 646.2010 Courts have concurrently on appreciation of evidence held the suit property to be owned and possessed by the plaintiff. The said finding is the finding of fact and can not be interfered with in the Second Appeal. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. It is not disputed that the suit property is in the name of the plaintiff and the registered instrument also stands in the name of the plaintiff. The presumption is that the person in whose name the registered instrument is, is the owner unless the other side shows that the same has been purchased from the joint family nucleus or existence of adequate nucleus. The plaintiff has come with the positive case that in the year 1977 there was separation. The said fact is substantiated by the evidence of defence witness, who had admitted that in the year 1977, some part of the property was given to him. Even the record shows that in the year 1977, some part of the land was given to defendant no. 3. This piece of evidence has been considered by the Courts below while coming to the conclusion that there was separation of the plaintiff from the joint family in the year 1977. The Courts have also considered 4 SA 646.2010 the anomalies in the deposition of the defence witnesses regarding the said memorandum. The memorandum does not contain the date as to when it was scribed. Even D.W. Nos. 1 and 2 are not unanimous as to the date of the execution of the said document. The said evidence has also been considered by the Courts below. In addition to that, the Courts have embarked upon comparing the signature. The decision is not solely based on comparison of the signatures, but all the attending circumstances have been taken into consideration. The defendants had never applied to the Court to refer the said document to the hand writing expert to invoke Sections 45 and 46 of the Evidence Act. More over, the defence of hand writing expert would be only corroborative piece of evidence. The Courts on appreciation of evidence led by the parties and other attending circumstances have come to the probable conclusion. It is held that by preponderance of probability the plaintiff has proved his case. 6. The view taken by the Courts below is a possible view. The Second Appeal can not be entertained only on the ground that some other view is also possible. The Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 5 SA 646.2010 7. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 646.2010