: 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.380 OF 2005 SECOND APPEAL NO.380 OF 2005 SECOND APPEAL NO.380 OF 2005 WITH WITH WITH CIVIL APPLICATION NO.649 OF 2005 CIVIL APPLICATION NO.649 OF 2005 CIVIL APPLICATION NO.649 OF 2005 Mahadev Dnyanu Sawant & Anr. ...Appellants V/s. Ramchandra Dnyanu Sawant, Deceased, . Thru’ Babasaheb R. Sawant & Ors. ...Respondents Mr.G.S. Godbole, Advocate, for the Appellants. Mr.Bhushan Walimbe, Advocate, for Respondent No.2. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 28TH FEBRUARY, 2008. DATE : 28TH FEBRUARY, 2008. DATE : 28TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate appearing for the appellants. The Appeal is by the original 1st and 3rd defendants challenging a decree of partition and separate possession passed in favour of respondent Nos.1(a) to 1(f). The Courts below have disbelieved the case made out by the 1st appellant regarding prior partition of the year 1958. 2. The submission of the learned Advocate for the appellants is that finding recorded by the Trial Court on issue No.4 is not disturbed by the Appellate Court and, therefore, it is obvious that the suit filed by the original plaintiff for general partition was not : 2 : maintainable. He pointed out that the said finding of the Trial Court is that there are other properties available which could have been partitioned. He, therefore, submitted that in view of the said finding which is not disturbed by the Appellate Court, the suit was not maintainable. 3. I have considered the submissions. It will be necessary to refer to the finding on issue No.4 recorded by the Trial Court. The relevant part of the said finding reads thus:- "It appears from the documents that deceased plaintiff, defendant Nos.1 and 2 are having some other properties in their name according to the defendant No.1 these properties should be taken into common hotch pot for partition. However, no proper steps are taken to add such properties in the suit. Therefore, if any property with plaintiff is the not included in this suit and if it is the ancestral property the defendants are at liberty to take necessary proceedings against them for getting share in that property. The suit for patial partition can also be allowed. Hence, keeping aside the rights of parties it can be said that some property in the name of plaintiff is not included in the suit. Hence, my finding on the issue is in the negative." 4. Thus, there is no specific finding that any particular property which is a joint family property : 3 : is not made a part of the suit. The Appellate Court has considered the evidence of the 1st appellant. The Appellate Court has observed that the appellants have not adduced any evidence to show existence of any other joint family properties. The finding of the Appellate Court is that the evidence led by the 1st appellant relates only to House No.910 which is his own property. There is finding of fact that the 1st appellant has failed to prove the execution of oral partition. The Courts below have discarded the case made out by the appellants regarding prior oral partition. 5. No substantial question of law arises. Second Appeal is accordingly dismissed. 6. In view of dismissal of the Appeal, Civil Application No.649 of 2005 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]