1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Second Appeal No.1611 of 2004 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri V.S.Bedre, Advocate, for the appellant and Shri N.C. Garud, Adv. for Respondent 1A to 1G. 2. This is second appeal by original plaintiff, whose suit bearing R.C.S. No.109 of 1984 for partition and separate possession was dismissed by Civil Judge, Junior Division, Karjat, District Ahmednagar, on 17.8.1995, which dismissal was further confirmed by the learned District Judge, Ahmednagar in Regular Civil Appeal No. 293 of 1995 decided on 20.6.2003. The reason for dismissal of the suit for 2 partition and separate possession is that both the courts have accepted the defence of the defendants that in the year 1960, there was partition between the appellants and the respondents and in the said partition, properties at Karjat were allotted to the Plaintiffs, whereas properties at village Rashin were allotted to the share of original defendant Sadashiv and since there was already partition, the suit for partition is not tenable. 3. So, basic question answered by the trial court and the first appellate court is whether there was previous partition in 1960. It is the case of the plaintiffs-appellants that the properties at Karjat are their self acquired properties and are thus not ancestral properties and, therefore, there was no question of allotting those properties to their share in partition. The parties were aware of the point in dispute and they were supposed to prove the same. 3 4. It is not more in dispute that the plaintiff and original defendant No. 1 were brothers and both were sons of Dhanaji. In his evidence, defendant No. 1 Sadashiv at Exh.82 has stated that his father, elder brother and sons formed joint family; that they reside at Karjat; that the family had a business of oil at Karjat and in or about 1940 they shifted to Rashin. Initially, they resided in a rented house and later on purchased house properties bearing No.729 and 726 in the name of the plaintiff. It is said that the plaintiff drove away his father Dhanaji and therefore Dhanaji and his defendant No.1 started residing at Karjat. Thereafter, an application was made to the Gram Panchayat for transfer of suit properties and accordingly, mutation entry No.226 was made in the Gram Panchayat record, a certified copy of which is at Exhibit 83.The mutation is certified in 1960. As per para 14 of District Court's judgment, it is stated in Exh.83 that there was 4 partition between the plaintiff and defendant No.1 and the poroperties at Rashin were allotted to the share of plaintiff and those at Karjat were allotted to the share of defendant No. 1 Sadashiv. It is also noted that this mutation, which was carried out on application dated 31.12.1960 was not challenged at any time till the suit was filed on 7.7.1984. Thus, the mutation was effected 25 years earlier to the suit. It is true that original application given for mutation is not coming forth after so much years. Perhaps, that being old record, might not have been preserved. 5. It has come on record that there was city survey enquiry wherein statements were recorded and thereafter properties in the names of plaintiff and defendant No.1 were entered separately. In paragraph 15 of the judgment of the first appellate court, it is observed that the said city survey enquiry record was before the court, but it was not exhibited, 5 although it was public record. So, besides this mutation entry, there was also record of Gram Panchayat so also there was city survey enquiry record to support the case of partition. Therefore, evidence that was on record was consistent with the case of defendant that there was previous partition in the year 1960 which is supported by record maintained twenty five years prior to filing of the suit and which was not challenged. It does not appear that any evidence was led to prove that the properties at Rashin were self acquired properties. 6. Shri Bedre, learned Advocate for appellants, has pointed out that in the first appellate court, application (Exh.37) was made for production of documents and the appellants wanted to produce original sale deeds. However, if we consider the discussion made by the learned District Judge in his judgment, it is undisputed that the properties at Rashin were purchased in the name of plaintiff. As 6 specifically stated in paragraph 13 of the judgment and it is the case of the defendant that in spite of it, it was a joint family acquisition. So, production of original sale deed is not going to make any difference for the appellant. What was important for the appellant-plaintiff was to lead oral evidence to show that he was already separate from his father and brother and from his own source of income, he acquired new property. Be that as it may. 7. In the circumstances, view taken by the trial court and the first appellate court, which is a consistent and concurrent view based on evidence on record, is a reasonable view. Hence, second appeal cannot be admitted as no substantial question of law arises and the same is accordingly dismissed. Parties to bear their own costs. Date:02/07/2009 (P.R.BORKAR, J.) pnd/sa1611.04 7