1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APEPAL NO.426/2010 MADANLAL JAIN ..VS.. GOVINDRAO KENE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 14 /10 / 2010 Heard Shri Kasat the learned counsel for the appellant and Shri Bhuyar, the learned counsel for the respondent. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration and possession. It was the case of the plaintiff that the plaintiff was the owner of the suit property as the same had fallen to the share of the plaintiff in a partition of the ancestral properties belonging to the family of the plaintiff. According to the plaintiff the defendant had illegally encroached upon the suit property and was not vacating the same in spite of the requests from the plaintiff. In such circumstances, the suit was instituted. The defendant filed the written statement and denied the claim of the plaintiff. The defendant also denied that the suit plot was the ancestral property of the plaintiff and had fallen to the share of the plaintiff in view of the partition of the year 1965. The defendant pleaded that he was the owner of the suit property. The defendant sought for the dismissal of the suit. The trial and the first appellate court on an appreciation of the evidence on record held that both the plaintiff as well as the defendant had not proved that they were the owners of the suit property. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the material evidence on record. The courts rightly disbelieved that the suit property had fallen to the share of the plaintiff in pursuance of the partition of the year 1965, as the partition 2 deed did not make a particular reference to the suit plot. The courts therefore, held that the plaintiff had not proved his ownership over the property and was not entitled to a declaration as sought by the plaintiff. The courts rightly held that the plaintiff was not entitled to secure the possession of the suit property as he was not the owner thereof. Since the findings recorded by both the courts are based on a proper appreciation of the material on record and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE SMP.