BABAN GIRJU BANGAR Vs. NAMDEO GIRJU BANGAR

JUDGEMENT

(1.) THE substantial question of law sought to be raised in this appeal is as to whether the burden of proof relating to the claim of exclusive ownership of the suit property is discharged by the plaintiffs in the civil suit inspite of the failure to produce original sale deed.

(2.) THE facts in brief relevant for the decision of this appeal are that respondent Nos. 1, 2 and 3 filed Civil Suit No. 102 of 1977 in the Court of the Civil Judge, Jr. Division, against the appellant and other respondents for permanent injunction in respect of the suit property bearing Survey No. 142/1 situated in village Nirgudsar, Taluka Ambegaon. The contention of the plaintiffs was that the property was purchased by a deed dated 3-7-1950 for a sum of Rs. 5,000/- out of the income earned by the plaintiff No. 1 from his hotel business as well as from the commission agency business in onion and potatoes at Manchar during the period from 1938 to 1947. It is their further case that in the year 1972 a farm house was constructed therein. The plaintiff Nos. 2 and 3 are sons of the plaintiff No. 1. On the other hand it was the contention of the appellant, who is the defendant No. 3 in the suit, that the suit property was not exclusively owned and purchased by respondent No. 1 but was a joint family property which was purchased out of the income from the hotel business earned by the appellant and respondent jointly and that there are some other properties though belonging to the joint family but standing in the name of the plaintiff No. 1. It was their further case that the house was constructed from the contribution of all the members in the family and there has been no partition of the ancestral properties. The trial Court on the analysis of the evidence adduced by the parties held that the suit property is a joint family property and, therefore, the appellant cannot be restrained from enjoying the same along with the respondents. Being aggrieved by the Order, the respondent Nos. 1 to 3 herein preferred an appeal being Civil Appeal No. 700 of 1981 which was heard and disposed of by the Extra Asstt. Judge, Pune, by his Judgment and Order dated 20-9-1984. By the said Order, the appeal was allowed and the decree of the trial Court was set aside and the perpetual injunction as prayed for against the appellant herein was granted in favour of the respondent Nos. 1 to 3 herein in respect of the suit property.

(3.) SHRI Abhale learned Advocate appearing for the appellant challenging the impugned decree submitted that the lower Appellate Court while setting aside the decree of the trial Court totally ignored the basic aspect of the case that the respondent Nos. 1 to 3 had failed to produce on record the original sale deed by which the property in question was purchased by the respondent No. 1. Being the best evidence available with the respondent Nos. 1 to 3 regarding the purchase of the property it was necessary for the said respondents to place on record the said deed by which the property was allegedly purchased solely from their own funds and for their benefits and not from the family income. He further submitted that the trial Court on analysis of the evidence on record had found that the fact that other properties which still continue to be in the name of plaintiff No. 1 but belong to the joint family property was not disputed by the plaintiffs as well as that the plaintiffs did not claim any exclusive right in respect of those properties, and conveniently have chosen to claim exclusive right only in respect of the property in question. He further submitted that the parties to the suit belong to Hindu family and therefore, there is presumption of jointness among the brothers and considering this fact as also considering the fact that the ration card of the parties discloses that all the family members including the plaintiff No. 1 as well as the appellant reside in the same house and therefore, the joint family continues to exist and the plaintiff No. 1 as well as the appellant are the members of such joint family. Taking me through the lower Appellate Courts Judgment, the learned Advocate submitted that the lower Appellate Court has arrived at findings based on certain presumptions which are not borne out from the record and according to the learned Advocate, it is apparent from the fact that the lower Appellate Court has referred to the alleged legal effect of section 6 of the Hindu Succession Act regarding the joint family as well as the alleged gratuitous act on the part of plaintiff No. 1 in respect of residence of the appellant in the house while referring to the ration card.