: 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.829 OF 2007 SECOND APPEAL NO.829 OF 2007 SECOND APPEAL NO.829 OF 2007 Vitthaldas Ranchhoddas Dawda ...Appellant V/s. Madhubala Narendra Sommaya & Ors. ...Respondents Mr.Hardas, Advocate, i/b. P.N. Joshi, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. DATE : 12TH MARCH, 2008. P.C.: P.C.: P.C.: 1. Heard learned Advocate for the appellant. Appellant is the original plaintiff. A suit for partition and separate possession was filed by the appellant claiming 1/5th share in the suit property. The 1st to 4th respondents are the real brothers of the appellant-plaintiff. The 5th respondent is the purchaser of the suit property from the original 1st respondent. 2. The case of the appellant-plaintiff is that there was a partnership business of the brothers and out of the income of the partnership business, the suit property was purchased. It is the case of the appellant-plaintiff that 1st defendant-1st respondent, : 2 : being the eldest brother, the property was purchased in his name. The 1st respondent filed the suit against the appellant under the provisions of the Rent Control Act alleging that the appellant was the tenant. The said suit has been dismissed. 3. The case of the 1st respondent in the present suit filed by the appellant was that the suit property was exclusively owned by him and the appellant had no right, title and interest in the said property. Apart from holding that the suit was barred by limitation, both the Courts below have recorded findings on merit against the appellant by holding that the appellant has failed to prove that he had right, title and interest in the suit property. 4. The submission of the learned Advocate for the appellant is that after the dismissal of the suit filed by the 1st respondent, the present suit was filed by the appellant who is admittedly in possession of the two rooms out of the suit property and therefore by no stretch of imagination it can be held that the suit for partition was barred by limitation. He submitted that assuming that the appellant had signed the mortgage deed executed by the 1st respondent in respect of the suit property in favour : 3 : of the Life Insurance Corporation of India, the said fact itself indicates that the appellant was entitled to a right, title and interest in respect of the suit property. He submitted that admittedly, there is no registered document executed by the appellant relinquishing his right, title and interest in the suit property and therefore the share and right, title and interest of the appellant-plaintiff was admitted. He, therefore, submitted that the Courts below ought to have passed a decree for partition. 5. I have given careful consideration to the submissions. There is some merit in the submission made by the Advocate for the appellant on the issue of bar of limitation. However, the Courts below have also considered the case on merits. There was a registered deed of mortgage executed by the 1st respondent in favour of Life Insurance Corporation of India by which the property was mortgaged. The said document has been signed by the appellant, 2nd to 4th respondents and their father for the purposes of giving consent to the execution of mortgage. The Appellate Court found that the appellant has admitted his signature on the deed of mortgage. There is a clear recital in paragraph No.3A of the deed of mortgage that the consenting parties (the appellant, : 4 : 2nd to 4th respondents and their father) do not claim any interest, title or ownership in respect of the suit property and that the suit property was the exclusive property of the 1st respondent. Apart from the mortgage deed at Exhibit-110, there is an affidavit at Exhibit-118 placed on record signed by the appellant and 1st to 4th respondents which records consent for execution of mortgage by the 1st respondent. The contents of the said document disclose that the plot and construction of building thereon is owned by the 1st respondent. The Appellate Court found that the stamp paper on which the said affidavit was typed was purchased in the name of the plaintiff. 6. It is thus obvious that the appellant categorically stated that he was not claiming any right, title or interest in the suit property and that the same was exclusively owned by the 1st respondent. In the circumstances, the Courts below were right in holding that the appellant was failed to establish his case. 7. No substantial question of law arises. Second Appeal is accordingly dismissed. : 5 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]