1 S.A.NO.94/07 WITH CA NO.229/07 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.94 OF 2007 WITH CIVIL APPLICATION NO.229 OF 2007 Shri Jayawant Bapu Parit @ Raut : Appellant versus Shri Kashinath Bapu Parit @ Raut & ors. : Respondents. Mr. S A Pawar for the Appellant. Mr.Manoj Kadam i/by Mr.Pratap Patil for respondent No.1. CORAM : R M SAVANT, J. DATE : 02nd August 2010 P.C. 1 This Appeal takes exception to the judgment and Order dated 31st October 2006 passed by the learned District Judge, Islampur by which the judgment and decree dated 2/4/1998 passed by the Civil Judge, Junior Division at Shirala came to be set aside. 2 The Appellant is the Original Plaintiff who had filed a suit for partition and possession of separate share in respect of the agricultural lands bearing Survey Nos.137/1 and 136 situated at Tadwala and house property bearing No.169 (Sr.No. 268) situated at Shirala. It is the case of the Plaintiff that his father Bapu Parit was the owner of the property in question. The said Bapu had two wives. From the first wife he had a son by name Kashinath, who is the Defendant No.1 and the Plaintiff was a son from the second wife. Bapu expired in the year 1971. In so far as the suit property is concerned, it is an admitted position that the suit property was originally owned by Chandrabai, the mother of Bapu who had received the same from her 2 S.A.NO.94/07 WITH CA NO.229/07 mother Umabai. It is the case of the Plaintiff that Chandrabai by recording a vardi before the revenue authorities allowed the said property to be entered in the share of her son Bapu Parit in the year 1940. The said revenue entry, it appears, had continued up to the year 1985. The said Chandrabai had on 12/8/1952 by a registered gift deed gifted the property to her grand­son Kashinath i.e. Defendant No.1. The Plaintiff, on the Defendant No.1 refusing to accede to the partition of the said property, had filed the said suit bearing Regular Civil Suit No.85/92. 3 The trial Court on the basis of the evidence on record and especially in view of the fact that the revenue entry in the 7x12 extract was in favour of the said Bapu recorded a finding that Bapu had become the sole owner thereof and therefore Chandrabai could not have gifted the said property to the Defendant No.1 by gift deed dated 12/8/1952 and therefore decreed the said suit, directing partition of the properties and the Defendant No.1 Kashinath was directed to hand over 6/20th share in suit properties to the Plaintiff. 4 Aggrieved by the said decree of the trial Court dated 2/4/1998, the Defendant No.1 Kashinath filed an appeal which came to be numbered as Regular Civil Appeal No.190 of 1998. The Lower Appellate Court on the basis of the consideration of the material on record allowed the said appeal and thereby set aside the decree of the trial Court. The Lower Appellate Court inter alia recorded a finding that merely because the name of Bapu was entered in the 7x12 extract and which entry continued for some time, it could not be held that the said Bapur had become the sole owner of the properties. In so far as gift deed was concerned, it was held by the Lower Appellate Court that the gift deed was a registered document and it was 3 S.A.NO.94/07 WITH CA NO.229/07 not disputed by the said Bapu in his life time and, was a document which in fact was acted upon by the parties. The Lower Appellate Court also took into consideration the fact that Bapu was shown as the natural guardian of the said Kashinath in the gift deed. The Lower Appellate Court held that only because death of the said Chandrabai was in close proximity to the execution of the said document, the said document could not be dubbed as doubtful. The Lower Appellate Court was of the view that the trial Court had proceded on the erroneous premise that the said Bapu had become the sole and exclusive owner of the property and since the said property was of the ownership of the said Bapu, the Plaintiff was entitled to a share as an heir of the said Bapu. 5 In my view, the finding of fact recorded by the Lower Appellate Court, in the context of the material on record, cannot be faulted with. Considering the grounds of appeal, they do not involve any substantial question of law. The above Second Appeal is accordingly dismissed. 6 In view of the dismissal of the above Second Appeal, the Civil Application No.229 of 2007 does not survive and the same is accordingly disposed of as such. [R.M.SAVANT, J]