1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 206/2005 (Indubai Shatrughna Bansod & 4 others VERSUS Suryabhan Rushi Bansod) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri P.S. Lambat for the appellants. Jr. to Shri A.M. Ghare, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 7, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff on a plea that the suit property belonged to a Hindu Joint Family comprising of himself, his brother, the defendant no.1, and his father Rushi. According to the plaintiff, the suit property was partitioned between the three in the year 1973 and a memorandum of partition was got executed on 11.12.1986 in pursuance of the partition which was effected in the year 1973 between the parties. It is then pleaded by the plaintiff that on 16.12.1986, defendant got yet another partition deed executed from their father Rushi fraudulently and by keeping Rushi in dark about the nature of the transaction. The plaintiff 2 also claimed ownership over the suit property by adverse possession. The defendant denied the claim of the plaintiff and pleaded that the suit property was not an ancestral or joint family property. According to the defendants, the suit property was self acquired property of Rushi and Rushi was serving in the Railway Department for nearly 20 years. It was denied by the defendants that the suit property was partitioned in the year 1973 as alleged by the plaintiff and the execution of the document dated 11.12.1986 was also denied. It was pleaded by the defendants that the document dated 11.12.1986 could not be proved as it was not a registered document though the plaintiff claimed that it reflected the partition between the family members. It was also pleaded by the defendants that their father Rushi, who was the absolute owner of the property, had validly executed the document dated 16.12.1986. The defendant sought for the dismissal of the suit. The trial Court considered the evidence tendered by the parties on record to hold that the plaintiff had succeeded in proving the partition of the year 1973 and that the document dated 11.12.1986 was a memorandum of partition and not a partition deed, and therefore, was not 3 compulsorily registrable. The trial Court held that the suit property was the joint family property. The Court further held that the plaintiff succeeded in proving that the defendant had prepared a false partition deed dated 16.12.1986 by practicing fraud on Rushi. The Court, however, held that the plaintiff had failed to prove his ownership over the suit property by adverse possession. The relief of declaration and permanent injunction as prayed by the plaintiff was granted by the trial Court. In an appeal preferred by the defendant no.1 against the judgment passed by the trial Court, the first appellate Court reversed most of the findings recorded by the trial Court. The first appellate Court held that the suit property was the self acquired property of Rushi and was not the joint family property. The Court further held that the plaintiff had failed to prove the oral partition of the year 1973 as also the memorandum of partition dated 11.12.1986. The Court held that since the property was the self acquired property of Rushi, there was no question of partitioning the suit property. The first appellate Court then held that the plaintiff succeeded in proving that the document dated 16.12.1986 was got executed by defendant no.1 4 from Rushi by practicing fraud. The finding on the question of adverse possession was confirmed by the first appellate Court to hold that the plaintiff had failed to prove his title on the suit property by adverse possession. It is submitted on behalf of the appellant by the learned counsel that the first appellate Court was not justified in rejecting the document dated 11.12.1986 when the document dated 11.12.1986 was not a partition deed but, was a memorandum of partition which clearly recorded the fact of the earlier partition which was effected between the parties in the year 1973. The counsel for the appellant, therefore, submitted that the first appellate Court was not justified in holding that the document dated 11.12.1986 was not legally admissible in evidence. I have considered the submissions made on behalf of the appellant. It is not necessary to consider the aforesaid submission as the first appellate Court, on a proper appreciation of the evidence on record, has recorded a clear finding of fact that the suit property was not a joint family property or an ancestral property of Rushi but, was the self acquired property of Rushi, who was working in the Railway 5 Department for a period of more than 20 years. Apart from the aforesaid finding, the Court also held that the document dated 11.12.1986 was not in the nature of a memorandum of partition but, was a partition deed, and therefore, was compulsorily registrable. Since the first appellate Court recorded a pure finding of fact that the property was the self acquired property of Rushi, there was no question of partitioning the property between the plaintiff, defendant no.1 and their father Rushi. The findings recorded by the first appellate Court are pure findings of facts which do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE