(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 134 OF 2010 1. Balu Waman Kale, Age : 74 years. 2. Ramrao Ranu Kale, Age : 65 years. Both agriculturists, both resident of Nadoor Nimba, Daitya, .. Appellants Taluka : Pathardi, (Original District : Ahmednagar. plaintiffs) versus 1. Laxmibai Narayan Kale, Age : 77 years. 2. Manjula Rama Jarhad, Age : 62 years. Both agriculturists, No.1 resident of Nandoor Nimba Daitya, Taluka : Pathardi, District : Ahmednagar. No.2 r/o. Hatgaon, Taluka : Shevgaon, District : Ahmednagar. 3. Nanibai Balu Lakade, Age : 57 years, Occupation : Agriculture, r/o. Umapur, Taluka : Gevrai, District : Beed. (2) 4. Chadrakala Banshi Ruchke, Age : 47 years, Occupation : Household work, r/o. Shiras (Devi), Taluka : Gevrai, Dist. Beed (Deleted vide pursis Exh.25). 5. Ganngubai Janba Dhongade, Age : 42 years, Occupation : Household work, resident of Shingori, Taluka : Shevgaon, District : Ahmednagar. 6. Bhagwan Laxman Dahiphale, Age : 60 years, Occupation : Agriculture. 7. Haribhau Laxman Dahiphale, Age : 54 years, Occupation : Agriculture. 8. Kisan Laxman Dahiphale, Age : 52 years, Occupation : Agriculture. 9. Madhav Laxman Dahiphale, Age : 42 years, Occupation : Agriculture. Nos.6 to 9 resident of Nandoor Nimba .. Respondents Daita, Taluka : Pathardi, (Original District : Ahmednagar. defendants) ....................... (3) Mr. A.B. Gatne, Advocate, for the appellants. Mr. Y.V. Kakade, Advocate, for respondent nos.1, 5, 6, 8 and 9. Respondent no.4 deleted. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 1ST APRIL 2010 COURT'S ORDER : 1. Heard the learned Counsel appearing for the respective parties, extensively. 2. The concurrent findings against the plaintiffs are tested in the Second Appeal. 3. Mr. A.B. Gatne, learned Counsel appearing for the appellants, before start of his submissions, desired to formulate following substantial question of law : " Whether based on entry in the revenue record of effecting mutation in the name of original defendant no.1, to the extent of 1/3rd (4) share, she will be deemed to have such 1/3rd share in the agricultural properties, without there being any valid document of partition or transfer or any conveyance" In order to highlight his contentions, the learned Counsel for the appellants took me to the observations of the learned court of first instance, the first appellate court and ultimately, submits that the findings in the light of above formulated question requires re-consideration warranting admission of the Second Appeal. 4. The factual details, not in dispute, illustrate that Waman, Ranu and Narayan are the three brothers. The subject properties are purchased vide sale deeds Exhibits 115 to 118 in the name of Waman, the eldest amongst the three brothers. The sale deeds are proved by examining the witnesses even otherwise by virtue of Section 90 of Evidence Act, the sale deeds had their legal worth to be considered. Mutation entries in pursuance to the sale deeds were entered into. The theory that has been propogated is, the defendant no.1 herself accepts that Narayan got separated in the year 1950, he was residing at another place, therefore, there could not be any entry in the name of defendant no.1 taking 1/3rd right in the property of Waman. (5) 5. It was canvassed, the purchase was not in the name of Waman alone, but it was also in the name of Ranu, the other brother. However, it is not established by any of the documents and consequently, I have no hesitation to hold that the properties referred by sale deeds at Exhibits 115 to 118 were purchased in the name of elder brother Waman only. There is no purchase transaction in the name of Ranu. The theory of Narayan separated in the year 1950, though was put up by defendant no.1, she had also explained as to how the property remained under common cultivation coupled with the mutation entries. It is a case of the defendant, that Survey No. 77/5A was purchased by the plaintiffs from defendant no.1 to the extent of 81 Are. If it is so, there was no reason for the plaintiff to purchase piece of land from defendant no.1, if it was exclusively either of Waman or Ranu. This blasts the very theory propagated by the plaintiff, of either partition in the year 1950 or the erroneous entries reflected in the revenue record. 6. The conduct of the parties demonstrate and proved that the purchases way back in the years 1945 to 1948 were in the name of Waman, the eldest amongst the three brothers, as their father had not left any other property. Consequently, the mutation effected during lifetime of Waman or Ranu was just. Waman expired on 22-12-1968, while Narayan also expired in (6) the year 1952 and Ranu expired in the year 1969. These dates of death also speaks volumes against the conduct of plaintiff nos.1 and 2. They cannot wriggle out the solemn purchase in the name of Waman taking recourse only to the mutation entries. In the scenario referred above, the mutation entries is not the only ground. The conduct of parties, the joint family held by Waman and Narayan having been provenly established, the findings of both the courts entitling the defendant no.1 to have 1/3rd share in the properties, could not be said to be flowing with any perversity. 7. The substantial question of law, referred to above, as tried to be raised by the learned Counsel appearing for the appellants, would not subsist in the light of the foregoing discussion. The Second Appeal sans merit and it is accordingly dismissed. No costs. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa134