1. By this Appeal the original plaintiff (through his legal heirs now) has challenged the concurrent judgments delivered by the Courts below dismissing his suit for partition and separate possession. Deceased plaintiff . Laxman filed Civil Suit no. 1136/1994 contending that Khasara no. 3 and Khasara no.19 of Mouza Dongargaon (Khairi), Tahsil and District Nagpur, initially belonged to one Barkya Vithu Teli and in course of inheritance devolved upon grandfather Pandurang and thereafter his father Jagobaji and his father's brother Barba. After Barba and Jagoba died property vested in three sons of Barba who were joined as defendants and deceased plaintiff Laxman. Though, initially the suit was also filed for partitioning Khasara no.3, later claim in relation to Khasara no.19 was given up and suit was pressed only in relation to Khasara no.3. Laxman claimed half share in Khasara no.19. The suit was opposed by the defendants, who denied the genealogical tree as incorrect and also contended that the property never vested in Barkya. They contended that, their father Barba got the property because of one Gift Deed dated 08.08.1938, executed by Warlaya s/o Vithu Teli in favour of Barba. They also contended that the suit as filed was barred by limitation. They also denied that Barkya was great grand father of plaintiff Laxman. In this background the Trial Court framed various issues and found that the defendants established that their father Barba became absolute owner of the suit land by virtue of registered gift deed dated 08.08.1938 [Exh.83], and they also established that they were in exclusive possession of the suit property. It further found that the suit was bad for non joinder of necessary party and also suit was not within limitation. In the course of discussion it also found that, the plaintiff Laxman failed to prove that Barkya Vithu Teli was his great grand father. This judgment and decree dated 27.8.1998 delivered in Regular Civil Suit No. 1136/1994 by 3rd Joint Civil Judge, Junior Division, Nagpur was then questioned by the plaintiff Laxman in Regular Civil appeal No. 625/1998. The said appeal was decided by the 3rd Additional District Judge, Nagpur on 10.09.2001 who while dismissing the appeal, found that the Khasara no.19 was selfacquired property of deceased Barba and suit was not within limitation. The present Second Appeal challenging these concurrent judgments and decrees has been admitted by this Court on 07.03.2005 and following three questions have been framed as substantial questions of law at that time.

“(i) Whether presumption under Section 90 of the Indian Evidence Act could have been drawn without production of original gift deed dated 08.08.1938?

(ii) Whether secondary evidence was admissible without proving the loss of original gift deed?

(iii) Whether the suit for partition was barred by limitation by drawing presumption of exclusion either from the year 1941-42 or from the year 1976?’

2. In this background, I have heard Shri R.L. Khapre with Shri S.P. Bhandarkar, Advocates for appellant/plaintiff, Advocate Shri Vaidya, for respondent no.1, Advocate Shri S.D. Sirpurkar, for respondent no.3 and Advocate Shri A.M. Kulkarni, for subsequent purchaser i.e. respondent no.4. It is to be noted that after second appeal was filed, plaintiff Laxman expired and his legal heirs have been brought on record on 3.3.2008 and 21.8.2008. Two legal heirs of Laxman are shown as respondent nos. 5 and 6. Respondent no.1 and respondent no.3 are the original defendants in Civil Suit. Respondent no.2 was also one of the defendant, and he expired during the pendency of the appeal and his name has been deleted on 7.4.2006.

3. Family Tree on which Laxman had placed reliance is as under:

Barkya Vithu Teli | Son Pandurang Barkya Teli | Sons ------------------------------------------ | | | Narayan Barba Jagobaji Pandurang Pandurang Pandurang (Died) (Died) (Died) | | | Son | Laxman Chindu | (Plff) (Died) | ------------------