1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD S.A. NO. 35/2005 WITH C.A. NO. 854/2005 Kishan s/o Kondiram Bhatane & Others ...Applicants Versus Baliram Kondiram Bhatane and others. ...Respondents. ........ Shri J. N. Singh, Advocate for appellants. Shri D.R. Bhadekar, Advocate for respondent no.1. CORAM : K.U. CHANDIWAL, J Date : 15 th March, 2010. ORAL JUDGMENT :- 1. Heard the counsel extensively. 2 Concurrent finding recorded against the defendant flowing from R.C.S. No. 154/2002, R.C.A. No. 163/2003 is questioned by the defendant. Mr. Singh submits, both courts erred in not formulating either any issue or the point in relation to existence to any partition between two brothers. The shares are unequal which could not be expected to devolve upon the parties by 2 virtue of oral partition. When the counter claim of the defendant for being putting the property in common hotch pot is accepted, the decree as sought by the plaintiff should not have been conferred. 3 The parties are real brothers, lead evidence of three witnesses each, to support their contention of oral partition having effected in 1994. It is a matter of record, the property at Ramwadi ad measuring 21 acres survey no. 191 is in possession of the defendant. The defendant in his evidence accepted, he does not want any share in the property of Ramwadi. The contention is the property at Rai wadi being ad measuring more than 25 acres, there being unequal partition, the decree should not have been recorded needs scanning. 3 It is a matter of record, the property at Ramwadi survey no. 191 is still in the name of son of plaintiff. Considering these aspects, the judgment and order under challenge questioned by the defendant, does not sound to raise any question of law or any substantial question of law between the parties. The theory of unequal partition though pointed, has its roots in the different location of the properties and the pieces thereof. The suit in the nature, it was filed being simplicitor suit for perpetual injunction, against original defendant 3 from causing any obstruction, it could not be accepted to have the nature of partition. The parties had oral partition way back in 1994 recognized by statute. No merit. S.A. lacs merits. Dismissed with C.A. application. [K.U. CHANDIWAL.J] tsk/sa35.05