ORAL JUDGMENT :- This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Nanded, in Regular Civil Appeal No. 22 of 1982 ("appeal"), which was reversing the judgment and decree passed by the learned Joint Civil Judge (J.D.), Nanded in Regular Civil Suit No. 104 of 1976 ("suit"). Present appellants were the plaintiffs and respondents were defendants. The parties, hereinafter, referred to their original status - i.e. as plaintiffs and defendants.

2. The plaintiffs are sons of defendant No.7. The plaintiffs have contended in the suit that the joint Hindu family of plaintiffs and defendant No. 7 was holding ancestral agricultural land at village MarIak (Bk.) Taluka and District Nanded. The partition between plaintiffs and defendant No.7 took place somewhere in the year 1970. In that partition, the suit property was allotted to the share of plaintiffs 1 to 3. Said partition was recorded under mutation entry on 1612-1970. Said Mutation Entry No. 430 was also certified by the competent authority. The plaintiffs names have been effected in the revenue record and they are in possession of the suit property since then.

Defendant No.7 executed sale deed of the suit property on 14-6-1971 in favour of defendant No.6. In fact, defendant No. 7 was in need of money and therefore, he executed a document in favour of defendant No.6. Defendant No.6 was indulged in money lending. Defendant No.6 was, however, not holding the license for money lending business. Defendant No.7 has repaid the loan raised from defendant No. 6 and obtained receipt thereof. The suit property was mortgaged long back in favour of Seva Sahakari Society. Maralak Bk. The plaintiffs are in actual physical possession of the suit property since partition and therefore, they have claimed permanent injunction.

3. Defendants after entering into appearance filed written statement. The written statement filed by defendant No.6 is at Exhibit 87. Defendant No.6 claims to have purchased the suit property by registered sale deed dated 14-61971. He has also contended that thereafter, he had executed an agreement of sale in relation to the suit property in favour of defendant No.8. According to defendant No.6, his name is recorded under Mutation Entry No. 448 in the record of rights of the suit property. Defendant No.6 denied the partition as claimed by plaintiffs on 16-2-1970.

4. The trial Court settled the issues.

5. On behalf of plaintiffs PW 1 Laxmibai-their mother. PW2 Manika-uncle of plaintiffs, PW3 Shriram and PW 4 Sheshrao are examined. Defendant No. 7father of plaintiffs had adduced his own evidence in support of the case of the plaintiffs. On his behalf witness Sambhaji is examined. On behalf of defendants 6 and 8, witness Datta is examined. Defendant No.6 did not enter the witness box in support of the pleadings in the written statement. The trial Court appreciated the oral as well as documentary evidence and decreed the suit.

6. The first Appellate Court did not accept the case of partition alleged by the plaintiffs. The first Appellate Court observed in its judgment paragraph No. 18 that the plaintiffs were of the age of 14, 7 and 4 years respectively at the time of alleged partition. According to the first Appellate Court, ex facie, it did not stand to reason that there could be a partition in between the father and his minor sons but according to first Appellate Court it could happen only in cases where the relations between mother and father are not cordial and that they have withdrawn from society of each others. It appears that Laxmibai and defendant No.7 had a son born after the alleged partition. This circumstance was also considered by the first Appellate Court while rejecting the alleged partition dated 16-2-1970. According to first Appellate Court, plaintiffs, their mother Laxmibai and defendant No.7 are not separate in food and residence, in spite of the alleged partition. Mutation Entry No. 430, according to t

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