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Judgment
A.S. Pachhapure, J.—The legal representatives of the deceased defendant have filed this appeal challenging the judgment and decree of partition confirmed in an appeal by the First Appellate Court, on the proceedings of the suit instituted by the deceased first respondent herein. The facts in brief are as under:
Parties will be referred as per their rank before the Trial Court for the sake of convenience.
The deceased first respondent was the plaintiff whereas the appellants herein are LRs of first defendant and respondents 2 and 3 herein are defendants 2 and 3 in the Trial Court. The deceased plaintiff, first defendant so also defendants 2 and 3 are the brothers and sisters. The plaintiffs claimed their share in the suit properties which are said to be the joint family properties of the parties, their father died about 15 years prior to the institution of suit. As the first defendant did not give share, the suit came to be instituted for partition and separate possession.
Defendants 1 & 3 filed the written statement denying the averments made and it is the specific contention of the first defendant that the suit properties are the self-acquired properties and were purchased by him from his own income derived from the service that he was rendering in the Government Department. It was also his contention that though his father owned his properties prior to 1948, they were sold by him and he re-purchased the said properties under a registered sale deed dated 20.08.1971. Therefore, he pleaded that as the suit properties are his self-acquired properties and the question of granting share to the plaintiff does not arise.
On the basis of these pleadings, the Trial Court framed the issues and on behalf of the plaintiff his wife PW-1 was examined in addition to examining two witnesses as PW-2 and PW-3 and documents Ex.P1 to P5 were marked. No oral evidence was lead by the defendants. Anyhow, they got marked Exs.D1 and D3, the documents in the cross-examination of PW-1. The Trial Court after hearing the counsel and on appreciation of the evidence on record, decreed the suit. Aggrieved by the judgment and decree, the defendants 1 & 3 preferred an appeal in R.A. No. 50/2004. The said appeal is also dismissed affirming the judgment and decree of the Trial Court. Aggrieved by the concurrent findings of both the Courts bellow, the present appeal has been filed.
The appellant has also filed I.A. No. 1/2008 under Order 41 Rule 27 of CPC seeking permission to produce certain documents.
I have heard the learned counsel for the both the parties.
It is the submission of the learned counsel for the appellants that the suit properties are self-acquired properties of the deceased first defendant and though the sale deed stood in his name, the Courts below committed an error in granting the suit for partition. For the first time, in this appeal, he has filed the aforesaid application under Order 41 Rule 27 of CPC seeking permission to produce the Xerox copy of the sale deed dated 13.09.1948 and 20.08.1971. The counsel also submits that these documents are necessary to do substantial justice to the parties and permission to adduce additional evidence be granted.
On the other hand, learned counsel for the respondents has supported the judgment and decree and also submits that there is no substantial question of law for consideration.
It is not in dispute that the suit properties were owned by the father of the parties and on 13.09.1948, he has sold these properties under a registered sale deed. Thus, properties were re-purchased by the first defendant in his name under the sale deed dated 20.08.1971. There is no dispute so far as this position is concerned.
The plaintiff has produced the Record of Rights at Exs.P2 to P5 and the Courts below have observed that there is an entry in Column No. 9 of Record of Rights that the suit properties are joint family properties though the sale deed was in the name of the first defendant, the entry made as said above was not challenged by the defendant at any time till the date of the institution of the suit. So far as such entries are concerned, there is a presumption in law that the said entries are genuine. In the circumstances, the aforesaid entry in the Record of Rights is itself sufficient to hold that the suit properties were joint family properties.
The defendants have not entered the witness box. No oral evidence was lead. If the first defendant had acquired this property from his own income, he could have deposed the said facts in the Trial Court. Therefore, from the non-examination of the first defendant to prove that the properties are self-acquired properties, an adverse inference could be drawn to hold that the properties are joint family properties. That apart, the defendant has produced Ex.D2, a document to speak to the division of these properties amongst the family members. In pursuance of this document, a report was made to the Revenue Authorities to effect the division as per the partition deed. This deed was not accepted by the Trial Court to hold that there was a division in the family, for the reason that it is an un-registered document. The fact that the defendants have produced Exs.D2 and D3 would also lead to inference that there is no dispute relating to the properties being the joint family properties. If the properties are self-acquired properties, the question of partition does not arise. Exs.D2 and D3 could be looked into for collateral purpose though they are un-registered documents. So, considering the aforesaid documents, and the inference to be drawn on the basis of these documents, supports the version of the plaintiff. The aforesaid evidence was appreciated by the Courts below and a finding has been arrived at holding that the properties are the joint family properties. There are concurrent findings of facts. Therefore, considering the submission made by the learned counsel for the appellants and perusal of the judgment of the Courts below would not reveal any substantial question of law for consideration. The appellant has sought permission to produce the aforesaid two documents, which are the Xerox copies of two sale deeds dated 13.09.1948 and 20.08.1971 as there is no dispute that the properties were sold by the father of the parties and purchased by the first defendant in his name, no purpose would be served incase, if the permission is granted. Hence, it is held that the appellants have not made out any case to allow the interim application to produce the additional documents.
Consequently, the appeal fails and it is accordingly, dismissed.
I.A. No. 1/2008 is also dismissed.