17-sa-155-2021.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 155 OF 2021 WITH INTERIM APPLICATION NO.857 OF 2020 Baban Dhondiba Jadhav and Ors. ...Appellants Versus Gajaba Gopa Jadhav (since deceased) and Ors. ...Respondents —————— Mr. Sudhir Sadavarte, for the Appellants. —————— CORAM : SHARMILA U. DESHMUKH, J. DATE : NOVEMBER 19, 2025 ORDER 1. The Second Appeal is at the instance of the original Plainti- against the concurrent /nding of the Trial Court and the /rst Appellate Court. 2. Regular Civil Suit No. 365 of 2007 was instituted by the Plainti- seeking partition and separate possession of the suit property. The Suit property is land admeasuring 1.46.5R of Survey No. 89/2 and Gat No. 651 which was claimed to be a joint family property of the Plainti-s and the Defendants. The genealogy was set out in the Plaint. According to the Plainti-s, except the suit land, other properties were Vishal Parekar 1 of 5 VISHAL SUBHASH PAREKAR Digitally signed by VISHAL SUBHASH PAREKAR Date: 2025.11.20 10:53:56 +0530 17-sa-155-2021.doc partitioned by metes and bounds between the family of the Plainti-s and the Defendants and the suit land was kept common for the purpose of grazing cattle. 3. The suit came to be resisted by the Defendants contending that there was previous partition between the family of the Plainti-s and Defendants in respect of all the properties which was given e-ect to in the revenue records. The suit property has come to the share of the Defendants in the partition. The genealogy of the Plainti-s is incomplete as one Krishna was the elder son of Genu and brother of Gopa and all necessary parties are not impleaded. 4. The Trial Court framed the necessary issues and on appreciation of evidence held that there is no material produced on record by the Plainti-s to demonstrate that only suit property was excluded from the partition. The Trial Court considered the admission of the Plainti-s that Genu had two sons Gopa and Krishna and the mutation entries which shows that the 7/12 extract of the suit property stands in the name of Krishna. As all the co-owners were not impleaded, the Trial Court held that the suit is not maintainable and dismissed the suit. 5. The /nding of the Trial Court was upheld by the /rst Appellate Vishal Parekar 2 of 5 17-sa-155-2021.doc Court by re-appreciating the evidence on record. The /rst Appellate Court considered the oral and documentary evidence which shows that the suit property exclusively stand in the name of Defendants and Krishna’s family and there is no material produced on record to demonstrate that the previous partition did not include the suit property and dismissed the Appeal. 6. Learned Counsel appearing for the Appellants would submit that the /nding of the Trial Court and /rst Appellate Court su-ers from perversity as the evidence on record shows that the suit property was undivided in the previous partition. He would further submit that the Plainti-s has led evidence to claim their undivided share in the suit property, particularly considering that it was not disputed that the suit property was joint family property. He submits that there is perversity in the /ndings and substantial question of law arises. 7. I have considered the submissions and perused the record. 8. The Plainti-s have come with the case of previous partition between the family of the Plainti-s and the Defendants and that the suit land being kept common for the purpose of grazing cattle. The genealogy which has been produced by the Plainti-s shows that Aaba Vishal Parekar 3 of 5 17-sa-155-2021.doc had two sons Genu and Saga and Gopa is the son of Genu and subsequent heir of Aaba. Whereas the Plainti-s belong to the branch of Saga. It is an admitted case that Gopa had a brother Krishna and Krishna’s branch has not been impleaded as party to the proceeding. Further there is evidence on record that as per the 7/12 extract the suit property was mutated in the name of Krishna who is shown as owner and in possession of the suit property. As Krishna is shown as owner of the suit property and considering that the suit was /led seeking partition of the suit property, it was imperative to implead all the branches of family which has not been done. 9. That apart, it is admitted by the Plainti-s as well as the Defendants that there was previous partition in the family in respect of the ancestral joint family property and the burden was upon the Plainti-s to demonstrate that the suit property was not part of the previous partition of the joint family. It appears from the /ndings of the /rst Appellate Court that the suit property exclusively stands in the name of Defendants and Krishna’s family. From the evidence on record the Trial Court as well as the /rst Appellate Court has rightly noted that the partition in respect of the ancestral property of the Plainti-s and Defendants had already taken place and there was no objection to the mutation entries in favour of Krishna’s branch by the Plainti-. Vishal Parekar 4 of 5 17-sa-155-2021.doc There is no evidence demonstrated to prove partial partition in respect of the ancestral property. As there is an admission of partition having been taken place, there is presumption that the partition was in respect of entire joint family property. 10. In the absence of any evidence to the contrary, the Trial Court and the /rst Appellate Court have rightly held that there is no partial partition of the property. Hence, the concurrent /ndings entered by the Trial Court and /rst Appellate Court are based on the evidence come on record. There is no perversity which is demonstrated. No substantial question of law arises in the present case. 11. The Second Appeal stands dismissed. 12. Interim Application does not survive and stands disposed of. [SHARMILA U. DESHMUKH, J.] Vishal Parekar 5 of 5