2025:BHC-AS:10628

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 325 OF 2020

Smt. Vithabai Baliram Patil (since deceased,

through LRs) and Others ...Appellants

Versus

Mahadeo Shankar Patil and Others ...Respondents

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Mr. Rohit D. Joshi for Appellants.

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Coram : Sharmila U. Deshmukh, J.

Date : 11th December, 2025.

P. C. :

1. The present Appeal is at the instance of the original Plainti challenging the concurrent findings of Trial Court and First Appellate

Court by which the Appellants suit came to be dismissed.

2. Regular Civil Suit No. 68 of 2004 was filed seeking partition and separate possession of suit properties and declaration as regards the sale deeds executed between the Defendant’s inter se. The Plaintiffs came with the case that the suit property was an ancestral joint family property. Gauru, Hari and Dhaya Patil were full blood brothers and each had 1/3^rd undivided share in the ancestral joint family property. The Plaintiffs are from the branch of Dhaya Patil whereas the

Defendants are from the branch of Hari Patil. Gauru died issueless. The Plaintiff’s case is that Dhaya Patil being the elder brother and Karta of joint family property entered his name in the revenue records in 1941 and after his death, the names of the Defendants were mutated. It was pleaded that in the year 2000, the Plaintiffs became aware that the property is being dealt with by the Defendants leading to filing of the suit in the year 2002. Armed with this case, the Plaintiff sought partition and separate possession of their undivided share.

3. The Defendants disputed the claim stating that the suit property is not ancestral joint family property and asserting exclusive title and possession of their pre-decessor.

4. The Trial Court framed the necessary issues and insofar as the properties being ancestral joint family property, answered the same in negative and dismissed the suit. The Appellate Court re-appreciated the evidence on record and dismissed the Appeal.

5. Mr. Joshi, learned counsel appearing for Appellants has taken this Court in detail through the findings of the Trial Court as well as the Appellate Court. He would submit that in order to prove that property was a joint hindu family property, the 7/12 extract as well as the mutation entry were produced on record. He submits that it is an admitted position that the Plaintiff and the Defendant had common propositus and the Defendant’s predecessor who was the Karta of the joint family property had entered his name in the revenue record. He submits that the mutation entry had not conferred any right upon the pre-decessor of the Defendant as the properties were joint family property and were held by Defendant’s pre-decessor as such. He would further submit that insofar as the aspect of limitation is concerned, the same has been answered in the negative despite the specific pleading that in the year 2002, the Plaintiffs became aware of the alienation of the property and demanded partition and only when the same was refused, the cause of action arose for filing the suit which was within time.

6. I have considered the submissions and perused the record.

7. The Trial Court considered the oral and documentary evidence on record. P.W.-1 has admitted in her cross-examination that she is unaware of the family settlement. She has not produced any evidence to show that name of Shankar was mutated as Karta of joint family. The Trial Court observed that P.W.-1 is unaware of the pre-decessors, the nature of property and details of property and is based on hearsay evidence. The issue was therefore, answered against the Plaintiff. The First Appellate Court had framed the relevant point for determination as regards the nature of joint hindu family property and answered the same in the negative.

8. As the basis for the suit was that the suit properties are ancestral joint hindu family properties, the burden was upon the Plaintiff to prove the same. It is only after the ini