The court's decision was influenced by the consideration of evidence from deposition recorded in the execution proceedings and the rejection of the application for amendment.

1. The trial Court dismissed the Special Civil Suit No. 750 of 1987 for partition and separate possession on 01.01.2001. The lower appellate Court has dismissed Regular Civil Appeal No. 117 of 2001 by judgment and order dated 07.01.2002. The original plaintiff is before this Court against the concurrent findings of fact.

2. This Court on 07.12.2005 passed an order as under, framing the substantial question of law.

"Heard.

Admit the appeal to consider the following question. Was the learned trial Judge in error in failing to deal with the question of production of an important piece of secondary evidence, namely, an alleged admission of respondents' predecessor Shri Jageshwar in his deposition in the suit filed by Shri Martandrao Jog against him and Manohar.

Office to ensure that the record is properly preserved."

3. Both the Courts have concurrently held that the plaintiff has admitted that the sale deed in respect of the suit property stands in the name of Jageshwarrao. The learned counsel for the appellants could not point out the averments in the plaint to the effect that the suit property was purchased by Jageshwarrao from the aid of nucleus from joint family property. Thereafter at subsequent stage, the application for amendment was made in the trial Court incorporating such a plea and that application was rejected and the decision is confirmed.

4. The lower appellate Court has held that though the fact that the sale deeds are in the name of Jageshwarrao has been admitted by the plaintiff, it holds that the sale deed is not produced to indicate that Jageshwarrao purchased the suit property as a Karta of the joint family. In paragraph 19, the lower appellate Court records the finding as under :

"19. ............... In the present case at the out set the statement Exh. 163 does not show that the concerned witness Jageshwar was cross-examined which may be one of the requirement to treat it as legal evidence. Secondly all the parties in the present disputes were not the parties in the execution case in which the deposition is recorded which was the circumstances in the case before the Hon'ble High Court. Thus, the ratio as laid down would be distinguishable. Apart from this, the effect of the statement has also to be considered and appreciated in the light of the circumstances in which it is recorded, it may be mentioned that the primarily responsibility to prove that the property was a joint property lies on the plaintiff. In the execution proceeding/case both Jageshwar as well as Manoharrao were litigating against the third party by the name of creditor Martandrao and would not have been more concerned to save the property. Thus, by itself and on the basis of the statement which is not cross examined, it cannot be said that the property was a joint property."

5. The lower appellate Court has thus considered the so called admission of Jageshwarrao given in the execution proceeding filed by one Martandrao Jog to execute a mortgage decree passed in Civil Appeal No. 14A of 1954.

6. The suit property was mortgaged by Jageshwarrao with Martandrao Jog and a loan was obtained. In order to recover this loan amount, the Mortgage Suit No. 14A of 1954 was filed, in which the appellant/plaintiff in the present case and Jageshwarrao, the real brothers, were joined as defendants. In the said suit, an issue was adjudicated as to whether the property was owned exclusively by Jageshwarrao or it was purchased by him as Karta of joint family out of nucleus of joint family property. In the said suit, specific finding is recorded that Jageshwarrao was exclusive owner of the suit property. In the proceedings for execution of the said decree, an objection was also raised by the plaintiff Manohar to the effect that it was the joint family property in the hands of Jageshwarrao as Karta. In the execution proceedings, Jageshwarrao led oral evidence and stated that appellant Manohar in the present case had share in the said property. The objection was