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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
SECOND APPEAL NO. 320 /1999
Santosh s/o Annaji Deshmukh
Aged about 40 years, occu: service
R/o Ward No. 9 Subhashwadi
Wardha Tah. & Dist. Wardha. ... ...APPELLANT
v e r s u s
Rambhau s/o Bhauji Deshmukh
Aged about 62 years
occu: Agriculturist
R/o village Hiwara Tah. & Dist.Wardha
Now residing at Subhashwadi
Wardha Tah & Dist. Wardha. ... ...RESPONDENT
...........................................................................................................................
Mrs Anjali Joshi, Advocate for appellant
Mr J R Kidilay, Adv.for Respondent
...........................................................................................................................
CORAM: A.P.BHANGALE, J.
DATED : 26th July, 2010
JUDGMENT :
This Second Appeal was admitted on 12.10.1999 on the
following substantial questions of law :-
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“(i) Whether the suit plot purchased in the
name plaintiff’s father could be treated as joint
family property when the simultaneous purchase of
another plot in the name of Daulatrao has not been
treated as property of the joint family?
(ii) Whether the Court below ignored that
plaintiff's father had separate income with the help
of which he would purchase the property and whether
existence of sufficient nucleus is established from
the facts found by the Court below?”
2. I have heard at length the submissions at the Bar with
reference to substantial questions mentioned above.
3. Genealogical order or family tree is given herein-below in
order to understand the controversy in an easy way:
Krishnaji
|___________________________________________
| | |Bhavji Annaji Daulatrao
| |Rambhau Santosh
(Defdt,/Resp.) (Plff/Appellant)
4. The plaintiff-Santosh has instituted suit for ejectment of
Rambhau (original defendant) and to recover possession of suit
property i.e. hut shown in plaint -map by letters “KBMLK” and to
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restrain defendants from demolishing the hut and make any
construction of new house. According to the plaintiff, his father Annaji
Deshmukh was in service as a teacher at Wardha and he had
purchased Plot No. 15 out of Field S.No. 30/1K, 13/31/7 at Circle
Nob admeasuring 30 ‘ x 60’ =1800 sq.ft. at Subhashwadi Wardha,
under sale deed dated 11.8.1952. After the death of plaintiff’s father
the plot was mutated in the name of plaintiff’s mother – Anjanabai and
after her death, it was mutated in the name of the plaintiff in the
municipal records.
5. The defendant who is cousin brother of the plaintiff, desired
that his son would take eduction at Wardha; but had no any
accommodation. Therefore hut near the house, was allowed to be
used by the defendant’s son at Wardha, temporarily to reside for
educational purpose. But despite completion of education and despite
notice, the defendant did not vacate the hut. Instead defendant started
claiming that the hut belongs to him and intended to demolish it and
start a new construction in its place.
6. The defendant who resisted the suit claimed that plaintiff’s
father purchased the plot from earnings of the joint Hindu family
property and that defendant is also sharer of the suit plot and refused
to vacate the suit hut.
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7. The trial Court by its judgment and order dated 30.11.1995
held that the suit plot is joint family property of Bhavji, Annaji and
Daulatrao and disbelieved the case of the plaintiff that defendant was
licensee of the hut since 1998 and proceeded to dismiss the suit.
8. The first Appellate Court dismissed the appeal filed by the
plaintiff confirming the dismissal of the suit.
9. The first Appellate Court considered the contentions
advanced at the Bar by respective counsel. The plaintiff’s father
was serving as a teacher, but no evidence was adduced to show that
he had sufficient funds to purchase the suit plot. No sale deed was
produced in respect of the suit plot although it is stated that the suit plot
was purchased in 1952. Partition deed in respect of a partition in joint
Hindu family did not mention that the suit plot was purchased by
father of the plaintiff by means of his independent self income. There is
evidence that although some agricultural lands at village Hiwara were
purchased in the name of the father of the plaintiff, the lands were
subject-matter of partition deed (Exh.34) in the year 1969. The onus
was upon plaintiff to establish that his father was having sufficient self
income to purchase the suit plot, but no satisfactory and sufficient
evidence was led by the plaintiff that suit plot is self-acquired property of
his father. On behalf of the respondent, reference is made to the ruling
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in Appasaheb Peerappa vs. Devendra Peerappa: (2007) 1 SCC 521.
The Hon’ble Apex Court referred to presumption as to joint family
property and onus of individual member who asserts self-acquisition
to establish that the property was acquired by him without the aid of
the nucleus. Making reference to earlier rulings, the Apex Court in para
no.17 concluded thus :
“17…………………..what emerges is that there is no
presumption of a joint Hindu family but on theevidence if it is established that the property
was joint Hindu family property and the other
properties were acquired out that nucleus, if theinitial burden is discharged by the person who
claims joint Hindu family, then the burden shifts
to the party alleging self -acquisition to establish
affirmatively that the property was acquiredwithout the aid of the joint family property by
cogent and necessary evidence.”
10. In view of this legal position and concurrent findings
recorded by the Courts below about failure of the plaintiff to prove
that the suit plot was self-acquired property purchased by his father
independently and without the aid of nucleus from the joint Hindu
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family, no fault can be found with impugned judgment and order in
the facts and circumstances of the case. The substantial questions of law
stated, must be answered as below :
That the suit plot was joint Hindu family property
irrespective of any other property not treated as joint property. No
fault can be found with Courts below to hold that plaintiff’s father had
no sufficient self income to purchase suit plot and nucleus of joint
property was used to purchase the same.
Both the Courts below based their conclusions upon evidence
led before the trial Court. It is well-settled by now that the appeal
against concurrent judgments sans merit deserves dismissal. As such,
the Appeal is dismissed.
JUDGE
sahare
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