1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 888 OF 2008 Madhukar s/o Devchand Bari .. APPELLANT VERSUS Ramkrishna s/o Devchand Bari .. RESPONDENT Shri P.S. Patil, Advocate for the appellant. Shri N.S. Sawant, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 16 th September 2009 PER COURT : 1 This is an appeal by original defendant raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff and defendant / appellant and respondent herein are the brothers interse. Respondent / plaintiff instituted Special Civil Suit no. 71/1996 claiming possession of house property. According to defendant, after death of their father, plaintiff and defendant constituted undivided Hindu joint family. Plaintiff and defendant purchased land bearing gat no. 186/1 at village Khanapur, Tq. Raver, Dist. Jalgaon. Land bearing gat no. 121 of 2 village Ajanad, Tq. Raver was purchased out of the income of the joint family. They also purchased open plot and constructed a building thereon. It bears gram panchayat no. 463. Land gat no. 186/1 was acquired by the State of Maharashtra for the purpose of construction of road and defendant received compensation of Rs.27,000/-. Plaintiff and defendant have divided land bearing gat no. 121 and both of them are cultivating their share. However, there was no partition in respect of house property. The brothers also did not make partition of the amount of compensation received from the State Government. On 20-7-1995, partition deed was got written in the presence of panchas by plaintiff and defendant. As per the deed of partition new house bearing no. 473 was to be allotted to the share of plaintiff while old house no. 373 was to be allotted to the share of defendant. It was also agreed between the parties that the plaintiff was to pay Rs. 55,000/- to defendant for construction of new house. It was further agreed that out of amount of Rs.25,000/- there was settlement of account and lastly it was agreed that the plaintiff was to pay Rs.7,000/- to the defendant and defendant was to handover possession of house no. 473 to the plaintiff on receipt of amount of Rs.7,000/-. Plaintiff made request to the defendant to accept the amount and to handover possession of the house. However, defendant refused. As such plaintiff approached the court seeking relief of 3 possession of the property. 3 Defendant appeared and controverted the contentions raised by plaintiff by filing written statement. According to defendant, house no. 373 was allotted to plaintiff while open plot bearing Gram Panchayat no. 463 was purchased by him out of his own income. Partition deed which was reduced into writing and signed by the parties came to be denied by the defendant. Defendant as such prays for dismissal of the suit. 4 After recording evidence of the parties, trial court came to the conclusion that the plaintiff has established his case and as such decreed the suit by judgment and decree dt. 26-11-1999. Judgment passed by the trial court was subjected to challenge at the instance of defendant in Regular Civil Appeal no. 31/2000 which came to be herd and disposed of by the District Judge, Jalgaon who was pleased to dismiss the same by judgment and decree dt. 7-2-2006. 5 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the appellant. Both the courts below have recorded finding that the plaintiff has established 4 execution of agreement in respect of partition of the house property. Plaintiff thus is entitled on the basis of partition to receive possession of the disputed property. Findings recorded by the courts below are proper and based on appreciation of evidence placed on record. No substantial questions of law raises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa888.08.odt