* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.929 OF 2007 WITH CIVIL APPLICATION NO.1313 OF 2008 IN SECOND APPEAL NO.929 OF 2007 Shri.Kisan Genu Sandbhor Thru.Power of Attorney Holder Shri.Dattatraya Krishnaji Sandbhor ....Appellant (Orig.Defd no.14) vs. Shri.Tukaram Dhondiba Sandbhor and Ors. ...Respondents (no.1 Orig Plff Nos.2 to 13 Orig.Defds 1 to 13) -======= Mr.U.B.Nighot, advocate for Appellant. Mr.P.S.Dani,advocate for respondent no.1. Coram : Smt. R.P.SondurBaldota, J. Date : 17thJune 2009. P.C. :- 1. This Second Appeal seeks to challenge concurrent findings of the two courts below being Judgment and Decree dated 2nd August, 2007 passed by the District Judge No.7, Pune in Civil * 2 * Appeal No.228 of 2006 and the judgment and Decree dated 31st January, 2006 passed by the Civil Judge Junior Division, Khed in Regular Civil Suit No.335 of 2001 as regards the status of the family properties as joint. The appellant is Original Defendant no.14. Respondent no.1 is the original plaintiff no.2. The other respondents are original Defendants no.1 to 13. The parties will be hereinafter referred to by their original nomenclature. 2. One Genu and Dhondiba, both since deceased were the sons of Kondaji. Dhondiba is survived by his son Tukaram- the Original Plaintiff. Genu had three sons being Raghu, Sopana and Kisan out of whom Kisan is living. Raghu and Sopana are no more. The heirs and legal representatives of these two brothers are parties to the proceedings. 3. In the suit for partition Tukaram-Original plaintiff contends that after the death of Genu in the year 1974 there was family arrangement between the family members under which the three brothers i.e. Raghu, Sopana, Kisan and their cousin Tukaram started residing separately and messing separately. The family arrangement also included separate cultivation of the joint family property. According to Tukaram, this was merely a family arrangement and not partition of the joint family * 3 * property. Kisan-Original Defendant no.14 however claims that there was oral partition amongst the family in the year 1974, during the lifetime of Ghenu and Dhondiba. Both were entitled to the same share i.e. half share in the suit properties. However, during their lifetime they equally distributed the property amongst their children by not keeping anything to themselves. This would mean that Dhondiba who was entitled to half share accepted one-fourth share for his son Tukaram, and Genu got higher share of three-fourth distributed between his children. Both the courts below have held that what is described as a family arrangement is not partiion and the suit filed for partition by the plaintiff is correctly brought. 4. The two major factors that have weighed with both the courts below are that after the death of the two brothers on mutation of the revenue records, all the properties were initially standing in the name of Raghu then Balu and later in the names of Balu, Raghu, Sopana and Kisan. Some of the revenue records described Balu as the Joint Family Manager. The courts below have observed that had there been partition as claimed there would have been corresponding changes in the revenue records. However, that is not so. The situation probably would have been different had there been no change in the revenue * 4 * record at all. But in the instant case, there has been change in the revenue records and the same shows the names of the parties for all the properties irrespective of its independent cultivation. This fact has not been explained by defendant no. 14 all. 5. The second major factor in favour of the original plaintiff is that at the time of the trial two witnesses Manohar Laxman Sandbhor and Tukaram Sandbhor who according to Defendant no.14 had witnessed the partition, were available. They have not been examined by original Defendant no.14. Thus, defendant no.14 has withheld the best evidence available to him. This gives rise to an adverse inference that if these witnesses were to be brought before the court to give evidence, they would not have supported defendant no.14. On these grounds, both the courts below have accepted the case of the plaintiff and granted relief of partition to him. 6. In my opinion, the concurrent findings of facts by both the courts below that the property in the hands of the parties, is a joint family property capable of partition is correct finding supported by good reasons. There is no need to interfere with the same. There is also no substantial question of law arising in the appeal. Hence, the Second Appeal is dismissed in limine. * 5 * 7. With the dismissal of the Second Appeal, Civil Application No. 1313 of 2008 does not survive. The same is accordingly disposed off. (Smt.R.P. SondurBaldota,J.)