1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 1457 OF 2005 WITH CIVIL APPLICATION NO. 2080 OF 2005 Chudgonda Balgonda Patil & Ors. .. Appellants Vs. Sachin Shamgonda Patil & Ors. .. Respondents Mr. Umesh Mankapure for the appellants. Mr. Anilkumar Patil for respondent Nos.1 & 2. CORAM : J. H. BHATIA, J. DATE : 9th October, 2009. P.C. 01. Heard learned Counsel for the parties. 02. Plaintiff-appellant, defendant Nos. 3 & 5 are brothers. Defendant No.4 is son of their brother. The family held land Gat No.289 admeasuring 35 Are situated at village Ankali as the ancestral property. The defendant No.3 sold away his 1/4th share in the said land from eastern side to defendant Nos. 1 & 2, who were also adjoining owners, under a registered sale-deed dated 25.09.1992. According to the plaintiff, when he came to know about the intention of defendant No.3 to sell his share, he had issued a notice to him on 05.09.1991 2 expressing his desire to purchase the property and to pay the price which may be as per reasonable market price. Defendant No.3 did not reply to the notice and executed sale-deed. Therefore, the plaintiff filed the suit under Section 22 of the Hindu Succession Act for declaration of his right of Pre-emption to purchase the property and for possession for the same. The defendant Nos.1 to 3 contested the suit. According to them, partition among brothers had taken place, long before this transaction and when this sale-deed was executed by defendant Nos.1 & 2. There is no joint family property of plaintiff and defendant Nos.3 to 5. According to them, 1/4th share sold by defendant No.3 to defendant Nos.1 & 2 was separate share of defendant No.3 as per earlier partition and therefore the plaintiff had no right of Pre-emption. The trial Court decreed the suit and directed the defendant Nos.1 & 2 to execute registered sale-deed in favour of the plaintiff. Defendant Nos.1 & 2 filed Regular Civil Appeal No.107 of 1997. After hearing the parties, learned 1st Advoc District Judge, Sangli allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit. Hence, the second appeal by the original plaintiff and defendant Nos. 4 & 5. 03. The First Appellate Court has taken note of the admission of the plaintiff extensively in para 13 & 14 of the judgment. Admittedly, the family had the land Gat No. 289 at Ankali and about 8 acres land property at village Takali. 3 The plaintiff admitted that, he was residing at village Ankali while his brothers are residing at village Takali for last 10-15 years. He also admitted that, he and his brothers were in possession of their separate two acres share each in the land at Takali for about 10-15 years prior to filing the suit. He also admitted that, he had purchased 1 ½ acres land at Ankali to which his brother has no concern. All the four brothers have separate ration cards and each is shown as head of his family. He also produced 7/12 extract i.e. record of right of the suit land (Exh. 48) wherein cultivation of each brother is shown separately to the extent of their shares. He admitted that, about the land at Takali, brothers were paying the revenue separately according to their individual shares. In view of this, it appears that, the partition had taken place among the brothers 10-15 years prior to the filing of the suit. It was not the case of the plaintiff that a partial partition had taken place. The trial Court relied on the certain admission of defendant No.3. However, on careful reading of his admission in the cross-examination, it appears that, he had only admitted that, he used to cultivate the land together with his brothers but his admission was not in the present but in a past tense. There was no admission that on the date of executing the sale-deed in favour of defendant Nos.1 & 2 he was in joint possession and cultivating the land jointly with his brothers. Taking into consideration the admission of the plaintiff in the cross- examination, it is clear that, the partition had taken place among the brothers at 4 least 10-15 years prior to the filing of the suit. Neither there was joint family nor joint family property on the date of the filing of the suit. Therefore, he had no right of Pre-emption under Section 22 of the Hindu Succession Act. The finding of Appellate Court is as a question of fact and it is supported by record. No question of law is involved in the present appeal. Therefore, the appeal stands dismissed. 04. As appeal is dismissed, Civil Application No.2080 of 2005 does not survive and stands disposed of. (J. H. BHATIA, J.)