1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 371 OF 1990 Champat Kisan Sargaiye (Kahar) age major, occup. agriculture, resident of Newasa, Tq.Newasa, Appellant/orig. Defendant No.1 (since deceased, through Legal heirs as under:-) 1(a) Ramdas s/o Champalal Kisan Sargaiye, age 50 years, 1(b) Bhanudas Champalal Sargaiye age 45 years, 1(c) Eknath Champalal Sargaiye, age 43 years, All above r/of Newasa (Khd) District Ahmednagar. versus 1. Shyama Kisan Sargaiye (Kahar) age major, occup. agriculture, resident of Newasa, Tq.Newasa, District Ahmednagar. (died, through Legal Representatives as under):- 1(a) Sushilabai d/o Shyama Sargaiye, age 32 years, occup.household, 1(b) Gangubai w/o Shyma Sargaiye, age 65 years, occupation Nil. 1(c) Mirabai Shyama Sargaiye, age 30 years, occup.household, 1(d) Ashok s/o Shyama Sargaiye, age 28 years, occup.household, 2 1(e) Samayani Shyama Sargaie, age 28 years occup.household. All r/o Newasa (Khurd), Taluka Newasa, District Ahmednagar. 2. Kamlabai Kisan Sargaiye, age major, occup.agriculture, Respondents/ r/of Newasa, Taluka Newasa, Resp.No.1 ori. District Ahmednagar. Pltff.and Resp. No.2 ori.deft. No.2. ------ Shri S.V. Jaigude, Advocate, holding for Shri C.K.Shinde, Advocate for the appellants. Shri D.G. Nargode, Advocate for Respondent No.1. ------ Coram : P.R.Borkar,J. Date : 13/01/2010. ORAL JUDGMENT 01. This second appeal is filed by original Defendant No.1, being aggrieved by judgment and decree of partition and separate possession passed by the learned Civil Judge, Junior Division, Newasa in Regular Civil Suit No.351 of 1981 decided on 29.9.1984 which is further confirmed by the learned 3rd Additional District Judge, Ahmednagar in Regular Civil Appeal No.369 of 1984 decided on 2.3.1990. 02. Briefly stated, appellant and Respondent No. 1 are the real brothers. Respondent No.2 was their mother who expired pending the appeal and therefore suit abated against her. The dispute is regarding a plot at Newasa, on which house bearing gram panchayat 3 No. 1051 consisting of 80 tin-sheets constructed in mud is situated. According to the plaintiff No.1, it was joint family property of himself and Defendant No. 1 and, therefore, he was entitled to half share in the same, whereas according to Respondent No.1 it was a house constructed by him exclusively on the plot that was allotted to him as a result of damage caused to his house in great flood of 1946. It is no more disputed that in 1946, there was flood and the house in Mali Galli was washed out in the flood. The main question, therefore, that arises for consideration in this appeal is whether the suit house property is a joint family property of appellant-defendant No.1 and plaintiff-respondent No.1, or it belongs to appellant No.1 alone. 03. Heard learned counsel for the respective parties. 04. The appeal is admitted on 21.1.1991 on on substantial questions of law which are incorporated in ground Nos. 3,4,6,10 and 11 of the appeal memo which are as under: "3. It could have been appreciated by the lower Appellate Court that trial court has wrongly framed the issues shifting burden of proof on Defendants (present appellant) to prove that there was no joint family at relevant time and the suit property was self acquired property of the Defendant. 4. Both the Courts below have failed to appreciate that there is no presumption that joint family possesses joint property. In present case, it could have been appreciated by both the Courts below that assuming that 4 in 1946 the family was joint even then the Plaintiff Respondent has failed to prove that suit house was joint property. The courts below could have appreciated that when ownership and occupancy rights are in the name of Appellant-Defendant only because allotment of the suit plot is in the name of Plaintiff-Respondent does not give rise to presumption of jointness of family. 6. Both the Courts below have failed to appreciate that Plaintiff-Appellant had failed to prove that there was sufficient nucleus of alleged joint family of the Plaintiff and Defendant to purchase the suit plot at Newasa. 10. Both the Courts below erred in not granting share to Defendant No.2 i.e. mother of Plaintiff and Defendant No. 1 in the suit for partition. 11. Both the Courts could have appreciated that the Plaintiff has been allotted plot at Ganganagar taluka Newasa on his name. This shows that Plaintiff and Defendant No.1 were living and dining separate. 05. Both, the trial court and the appellant court have discussed the evidence in details. It is not disputed that Exhibit 49 which is the allotment letter issued in respect of plot is in the name of the plaintiff. He was also given notice Exh. 50 for making construction on the plot. It is also not disputed. It is also not disputed that on 17.1.1952 vide Exhibit 54, appellant and respondent No. 1 sold joint family property at village Lakhamapur. It is also not disputed that both, appellant and Respondent No.1 who are brothers, purchased Gat No.683 jointly vide sale deed dated 20.5.1959 at Exhibit 69. These transactions of the years 1952 and 1959 were 5 considered by the District Court as important evidence to show that the appellant and respondent No.1 were joint at the time of great flood of 1946. The court thus discarded the case of the appellant that the two brothers had separated long back in or about 1925. The District Court also relied upon certain admissions given by defendant No.1 in paragraph 1 of his cross examination that he was residing jointly with plaintiff for about 10 to 15 years after his arrival at Newasa in the year 1946. So, according to the own version of Defendant No.1, the family was joint in 1946. The disputed plot is admittedly alloted in the year 1948 or thereabout. Defendant No.1 also admitted in the opening sentence of his examination in chief recorded on 24.9.1984 that the plaintiff was earning when they were residing jointly. Therefore, the theory or case that Defendant No.1 was residing separately in a house at the bank river is something which is beyond the pleadings and thus not believable. Reliance was also placed on sale deed Exhibit 54 dated 17.1.1952 in which ages of two brothers (appellant and respondent No.1) were shown to be 35 and 40. It was, therefore, held that the plaintiff was earning member at the relevant time. 06. It is also admitted by appellant-defendant No.1 that Rs.900 were received by him as advance money from the prospective purchaser in the year 1950 itself. So, for construction of house there was availability of funds in the form of earnest money from the sale of joint family property. Though Appellant-defendant No.1 denied that plaintiff was earning Rs.90 per month from his service on ferry 6 boat, witness of the defendant admitted the said position in his evidence. It is also noted in paragraph 18 of judgment of the learned District Judge that as per the admission given by witness of the defendant, the house of Laxman Lokhande in which Defendant No.1 was residing prior to flood of 1946, was not lost whereas house of Savaleram and the bungalow of Male were lost in the said heavy flood. In other words, the witness stated that the house in which the plaintiff was residing was completely washed away and, therefore, allotment of plot was in favour of the Plaintiff and therefore certificate of allotment vide Exhibit 49 was in favour of the plaintiff. 07. The District Court also referred to the evidence of DW-3 Mohan Thorat who was Gram Sevak and also to the evidence of DW-2 Ananda Lokhande. Both have stated that plaintiff and defendant were residing jointly in Mali Galli prior to heavy flood and their house was washed away in the said flood. So, it is sufficiently brought on record that prior to the flood, both the brothers were residing jointly. They also admitted that after the said flood, family shifted to the house of Lokhande. The evidence is also brought on record that the plaintiff was earning. The record or document in favour of the appellant is the gram panchayat record. But it is stated that defendant No.1 was elder brother and thus Karta of the joint family. Therefore the mere existence of gram- panchayat record in the name of defendant No.1, by itself cannot negative fact that the plot was allotted for both the brothers and that the house thereon was 7 also constructed by them jointly. 08. So far as non joinder of sister to the suit is concerned, the learned District Judge in paragraph 23 of his judgment observed that father of appellant and Respondent No.1 died prior to 1956 and, therefore, sister had no share in the property. 09. After going through the judgment of the District Court, so also of the trial court, I am of the considered view that both the judgments are reasonable based on appreciation of evidence on record. This is not a case wherein any material piece of evidence was not considered or some inadmissible evidence is considered by the courts. 10. In the circumstances, this appeal has no merits and the same is therefore dismissed. 11. Civil Application, if any, does not survive in view of disposal of the appeal. pnd/sa371.90 (P.R.BORKAR, J.)