: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.78 OF 2008 SECOND APPEAL NO.78 OF 2008 SECOND APPEAL NO.78 OF 2008 Sadashiv Tatya Khade, Deceased, . Thru’ Kalvati Sadashiv Khade & Ors. ...Appellants V/s. Laxmibai Namdeo Khade & Ors. ...Respondents Mr.M.A. Patil, Advocate, for the Appellants. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 1ST FEBRUARY, 2008. DATE : 1ST FEBRUARY, 2008. DATE : 1ST FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate for the appellants. Appellants are the legal representatives of the original defendant No.1. A suit for declaration of ownership and injunction was filed by the 1st respondent. The case of the 1st respondent is that one Dagadu who is the real brother of the original defendant No.1 sold the suit property by a registered sale deed in her favour. The Trial Court decreed the suit to the extent of the prayer for perpetual injunction, however, the Trial Court declined to grant relief of declaration of exclusive ownership on the ground that in partition effected between Dagadu and his brothers, shares were not allotted to their mother and sister. The decree for perpetual injunction was not challenged : 2 : by any of the defendants. The 1st respondent-plaintiff preferred an Appeal before the District Court. The District Court modified the decree and in addition to decree for perpetual injunction, granted a declaration of ownership. 2. The submission of the learned Advocate for the appellants is that even according to the case of the 1st respondent, her vendor Dagadu became the owner as a result of partition of properties between Dagadu and his brothers (defendant Nos.1 and 2). He submitted that in the said partition a share was not allotted to their mother and sister and therefore, Dagadu cannot be held to be the exclusive owner. He, therefore, submitted that Trial Court was right in declining to pass a decree of declaration. He, therefore, submitted that there was no reason to pass a decree of declaration. 3. I have considered the submissions. As pointed out earlier, there is no Appeal or Cross-Objection preferred by the appellants against the decree of the Trial Court. There is nothing on record to show that the partition effected between Dagadu was challenged by his mother or sisters. In paragraph No.17 of the Judgment of the Appellate Court, it is observed that : 3 : the 1st defendant (predecessor of the appellant) admitted in his cross-examination that deceased Dagadu was the exclusive owner of the suit field. The Appellate Court noted that the 1st defendant also admitted that on 20th May, 1969 a partition had taken place between himself, Dagadu and their other brother and since then the brothers have been cultivating their share independently. 4. In view of the categorical admission on the part of the predecessor of the appellants, the Appellate Court has accepted the case made out by the 1st respondent that her predecessor in title was the owner of the property and therefore she has acquired exclusive ownership of the suit property. No substantial question of law arises. Second Appeal is dismissed. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]