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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 464 OF 2007

WITH

CIVIL APPLICATION NO. 1186 OF 2005

Bhau Ramchandra Agarkar & ors........Appellants

versus

Shantaram Pandurang Agarkar & ors........ Respondents.

Mr. R.S. Apte Sr. adv. I/b A.A. Garge adv. for the Appellants

None for the respondents

CORAM: A. P. DESHPANDE, J.

DATED : 5th JANUARY, 2009.

P.C.:

1.

This second appeal takes an exception to the judgment

and decree passed in favour of the respondent/plaintiffs for

partition and separate possession. The decree passed by the

trial court has been confirmd by the first appellate court by

dismissing the appeal. Hence this second appeal.

2.

The plaintiff/Respondent had approached the trial

court by contending that they have ½ share in the suit property,

the properties being ancesstral. The present appellants by filing

written statement contended that though the propeties were joint

family properties earlier, there was a partition between the

plaintiffs and the defendants about 50 years back and thus the

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suit properties which are in possession of the defendants are

owned by them. The plaintiffs led oral evidence that there had

never been any partition and the properties are joint family

properties. Per contra the present appellants/defendants in the

first place chose not to cross examine the witnesses examined

by the plaintiff and in the second place further chose not to lead

any evidence whatsoever and did not step into the witness box.

Relying on the uncontroverted evidence led by the plaintiffs the

trial court passed the decree which is confirmed by the first

appellate court. It is obvious that the burden to establish and

pove that there was partition, is on the defendants as the

presumption of jointness was in favour of the plaintiff. No

evidence has been led to rebut the said presumption. No

substantial question of law emerges in the present appeal.

Hence second appeal is dismissed.

4.

At this stage, the learned counsel for the appellant

prays for continuation of ad-interim relief. As I have declined to

admit the second appeal, continuation of ad-interim relief would

be unfair and unjust to the respondent. Hence the prayer is

rejected.

3.

In view of the dismisal of second appeal, the civil

application does not survive and the same is also dismissed.

(A. P. DESHPANDE, J.)