IMPORTANT POINT
Once a partition in the sense of division of right, title or status is proved or admitted, all joint property would be presumed to have been partitioned or divided.

JUDGMENT

SURINDER SINGH NIJJAR, J. –

1. Leave granted.

2. This appeal has been filed against the judgment and decree dated 23rd March, 2009 of the High Court of Bombay (Aurangabad Bench) rendered in First Appeal No.468 of 2004 whereby the High Court has partly allowed the First Appeal of the plaintiffs/respondent Nos. 1 to 3. The High Court has dismissed the suit of the plaintiffs in respect of the agricultural lands and house property at Chikalthan and Neem Dongri. At the same time, the High Court has set aside the judgment of the trial court on Issue No.3 relating to the question as to whether house bearing No.4.13.78 bearing CTS No.4705 admeasuring 138.2 sq. meters alongwith house structure standing therein situated at Nageshwarwadi, Aurangabad is the self acquired property of deceased Eknathrao.

3. The admitted facts are that plaintiff Nos. 1 and 2 to 4 are the wife and children of deceased Prabhakarrao s/o Saluba respectively. Defendant Nos. 7 and 8 to 12 are the wife and children of deceased Trimbakrao s/o Deorao respectively. Defendant Nos. 13 to 15 are the subsequent purchasers of land from the plaintiff. For better understanding of the inter-se relationship between the parties, it would be appropriate to reproduce here the genealogy table of the family, as noticed by the trial court: Mahipati Deorao (son) died on Sauba (son) died 15.7.1974 on 6.10.1980 Shewantabai (wife) died Ansabai (wife) died Prabhakar (son) died Eknathrao (Son) Trimbakrao (son) Tarabai Santosh Satish Manisha Died on /11/97 died on 31.5.86 (P-1) (P-2) (P-3) (P-4) Indubai (wife) D-1 Kamlabai (wife) D-7 Kiran Kranti Asha Jyoti Bharti D-2 D-3 D-4 D-5 D-6 Pramod Vinod Rajendra Vidya Vijaya D-8 D-9 D-10 D-11 D-12

4. The plaintiffs filed a suit for partition and separate possession of half share of the plaintiffs in the following properties :-

(I) Agricultural land Gat No.453 whose survey number is 210 adms. 19 acre 1 guntha situated at village Chikalthana Tq. Kannad.

(II) Land bearing Gat No.146 of whose survey number is 65 adms. 27 acre 39 gunthas situated at Nimdongri Tq. Kannad.

(III) House property bearing No.725 adms. 26.39 sq. meters situated at Chikalthana Tq. Kannad.

(IV) Open plot bearing CTS No.709 adms. 64.3 squ. meter known as 'Girnichi Jaga' situated at Chikalthana Tq. Kannad.

(V) House bearing No.4.13.78 of whose CTS No. is 4705 adms. 138.2 sq. meters along with house structure standing thereon situated at Nageshwarwadi Aurangabad.

5. It was claimed that property at Sl.Nos.I and II were jointly purchased by deceased Deorao and deceased Saluba in the name of Deorao. The house at Sl.No.III was said to have been constructed on a plot jointly purchased by the two brothers. Both the brothers were residing in the same house during their life time. With regard to property at Sl.No.V, it was stated that both the brothers had purchased the plot on which the house is constructed. It was further claimed that the plot was purchased in the name of Eknathrao and his family was residing in that house.

In short, it was claimed that during the life time of Deorao and Saluba, all the properties were jointly cultivated and were jointly enjoyed by all the family members. Trimbakrao was residing at Kannad and Eknathrao was residing at Aurangabad due to their employment. Similarly, Prabhakarrao was in service at different places. It was also the case of the plaintiffs that there was a family arrangement between Eknath, Trimbak and Prabhakarrao. Property at Sl.No.I was allotted to Trimbakrao and Prabhakarrao to the extent of half share each. Similarly, land at Sl.No.II was allotted to Trimbakrao (7 acres) and to Prabhakarrao (6 acres and 39 gunthas). Eknathrao was allotted 14 acres.

After the family arrangement, it was alleged that everyone was in possession of the respective parts of land and their names were entered in the revenue record. It is the further claim of the plaintiffs that in the same family arrangement house at Sl.No.III was given in possession of Trimbakrao