In disputes regarding partition of joint Hindu family property, the burden of proof lies on the party asserting partition, and the presumption of jointness remains unless clear evidence to the contrary is presented.

JUDGMENT :

M.S. JAWALKAR, J.

1. Heard.

2. The present Second Appeal is filed by the appellants being aggrieved by the judgment and decree passed in Regular Civil Appeal No. 4/1997 on 23/03/2007 by the Court of 1st Ad-hoc Additional District Judge, Nagpur reversing the judgment in Regular Civil Suit No. 859/1977 of the Court of the VIIth Joint Civil Judge, Junior Division, Nagpur dated 01/10/1996, granting the counter claim of the appellants/defendants in respect of partition of the agricultural ancestral properties.

3. The Plaintiff’s case in brief is as under:

It would be convenient to reproduce genealogy in the matter as under:

4. The Plaintiff Kashinath was cultivator and milkman at Mouza Shivangaon, Taluka and District Nagpur. The original Defendant Nos. 1 to 5 were the step brothers and the Defendant No. 6 was his real brother. The father of the original Defendant Nos. 1 to 5 namely late Dajiba died about three years back when the Suit was filed. Genealogical tree of late Kashinath (original owner/common ancestor) is given in Paragraph No. 1 of the Plaint which is reproduced above. It is submitted that one Kashinath is the common ancestor in the Kantode family. He died long ago leaving behind his three sons namely Raghunath, Shiva and Zamya. After the death of common ancestor, the joint hindu family having Field Survey Nos. 98, 99 & 100 total area 11.9 acres of land at Isasani, Patwari Halka No. 46, Taluka and District Nagpur was partitioned between Raghunath and Zamya as the other brother namely Shiva was dead. In this partition, the Field Survey No. 98 was allotted to the share of Zamya and the Field Survey Nos. 99 & 100, area 5.38 acres, came to the share of late Raghunath. The other brother namely Shiva and his two sons namely Ramaji and Pandu were also dead at the time of partition.

5. Late Raghunath was having two wives namely Gajrabai and Radhabai. Smt. Gajrabai had two sons namely Dajiba and Bajirao and Radhabai had three sons namely Kashinath, Sadashiv and Manikrao. Sadashiv and Bajirao died issueless. Late Dajiba was having five sons i.e. Defendant Nos. 1 to 5. At the time of death of Raghunath, he had agricultural field property i.e. Khasra Nos. 99 and 100 at Mouza Isasani and house property at Shivangaon to his share. After the death of Raghunath till today, the above property is not partitioned. The agricultural property is situated at Mouza Shivangaon was only partitioned amongst the original Plaintiffs Kashinath, Manikrao and Dajiba i.e. father of the Defendant Nos. 1 to 5 about 30 years back. In view of the said partition, Dajiba got share in Khasra No. 59/1, area 2.67 acres, Khasra Nos. 247 & 248, area 7.16 acres. His name was also mutated in the Government records. Thereafter, late Dajiba did not pay the land revenue. Hence, these fields were put to an auction in the year 1937. The Plaintiffs purchased Khasra No. 59/1, area 2.67 acres from his self-earned money and other Khasra Nos. 247 & 248, area 7.16 acres were purchased by Zhadba. The Plaintiff became the absolute owner of the property which he received in partition and which he purchased in auction. As such, the Plaintiff is claiming partition of the Suit House of Mausa Shivangaon and claiming his 1/3rd share.

6. The Defendants filed their written statement and admitted relationship inter se between the parties. It is also admitted that there was Joint Hindu Family property at Mouza Isasani which came to the share of late Raghunath. It was their contention that after the death of Raghunath till today, the property is not partitioned. They denied that the agricultural property at Mouza Shivangaon was partitioned amongst the Plaintiffs, Manikrao and Dajiba about 30 years back. They have further contended that the Plaintiffs have earlier filed Civil Suit bearing No. 24/1969 in which it was held that the property standing in the name of Raghunath was never partitioned. They claimed that the present Suit is hit under Section 11 of the Civil Procedure Code. Their