1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.136 OF 1990 Chudamansingh Bhojusing Thakur, aged 56 years, occup. Agril., r/of Kurla, Taluka Kandhar, Appellant/orig. District Nanded. plaintiff. versus 1. Ramsing Bhojusing Thakur, aged 52 years, occup. Agril. r/of Kurla, Taluka Kandhar, District Naned. (Since deceased, through L.Rs.:-) a. Bhojusingh Ramsing Thakur, aged 30 years, r/o Kurla, Taluka Kandhar, Dist.Nanded. b. Kankarsingh s/o Ramsingh, aged 25 years c. Shankarsingh s/o Ramsingh, aged 20 years, d. Shambhusingh s/o Ramsingh, aged 15 years, minor under guardianship of real mother Subhadrabai w/o Ramsing e. Subhadrabai w/o Ramsing, age about 45 years, All occup. Agriculture, r/of Kurla, Taluka Kandhar, District Nanded. 2. Bhojusingh Ramsing Thakur, aged 17 years, (minor) u/g of father Ramsing (Respondent No.1) (Resp.No.2 is shown legal heir of Respondent No.1 and also major i.e. 19 years old by order dtd.29.11.1991 in C.A.No. 3513 of 1991) Shri M.V.Deshpande, Advocate Advocate for the appellant. Shri V.D.Patnoorkar,Advocate for Respondent Nos.1-a to 1-e. 2 Coram : P.R. Borkar, J. Date : April 26, 2010 O RAL JUDGMENT 1. This second appeal is preferred by original plaintiff being aggrieved by the judgment and decree passed by the learned III Additional District Judge, Nanded in Regular Civil Appeal No.366 of 1993 decided on 20.10.1989, whereby the learned Additional District Judge modified the judgment and decree of partition and separate possession passed by the learned Civil Judge, Junior Division, Kandhar in R.C.S. No.188 of 1980 decided on 26.10.1983, by setting aside the said judgment and decree of trial court respect of landed property, but confirming the same insofar as house property bearing CTS No.287 is concerned. 2. Some of the facts giving rise to this appeal may be stated as below. Appellant No.1 Chudamansingh, Respondent No. 1 Ramsingh and deceased Hirasing were the brothers. Yashodabai was widow of Hirasingh. Hirasing died 8-10 3 years prior to filing of suit in 1983 and Yashodabai died 3 to 4 months before filing suit in 1983. Deceased Yashobai had executed sale deed on 20.3.1976 in favour of Respondent No. 2 Bhojsing in respect of landed property. It is the case of the appellant- plaintiff that there was no partition between three brothers and, therefore, Yashodabai had no right to execute sale deed in respect of particular property and as such, the sale deed executed by Yashodabai is not binding on him and therefore partition be effected in respect of landed, so also house property. 3. Respondents are father and son respectively. They have come with a case that there was partition between appellant Chudamansingh, Respondent No.1 Ramsingh and deceased Hirasing about 20-25 years before filing suit and they were also residing separately.Hirasingh was given land which was numbered as survey No.162/1 admeasuring 2 hectare 76 R., whereas Appellant Chudaman was allotted 2 hectare 77 R share which was numbered as survey No.162/2 and Respondent No.1 Ramsing was given 2 hectare 77 R. which was numbered as survey No.162/3. It is also stated that portion of CTS No.285 was allotted to Hirasingh which was later on succeeded by Yashodabai 4 and it was given sheet No.287. The portion of house allotted to Respondent No.1 Ramsingh was given sheet No.288 whereas appellant-plaintiff was allotted portion of house which was given CTS No.285. In view of partition, Yashodabai had a right to sell the property and therefore the sale deed executed by her is binding. 4. The trial court has come to the conclusion that there was no partition between the three brothers and as such, the sale deed is not binding and so it decreed the suit for partition and possession as prayed. As against that, the appellate court held that there was partition between the three brothers about 20-25 years before filing the suit and so Yashodabai had right to sell her landed property and since she died issueless, appellant and Respondent No. 1 being her close relatives, were entitled to partition of the house property. Accordingly, the learned appellate judge decreed the suit in respect of house property owned by Yashodabai which was CTS No. 287. 5. This second appeal is admitted on following substantial questions of law. 5 (1) Whether the first appellate court was right in holding that there was partition amongst appellant No.1, respondent and their brother Hirasingh about 20 to 25 years prior to filing of the suit ? (2) Whether the sale deed executed by Yashodabai is not binding on the Plaintiff Chudamansingh ? 6. Heard Shri M.V.Deshpande learned Advocate for the appellant and Shri V.D.Patnoorkar, Advocate for Respondent Nos.1-a to 1-e. 7. So far as partition between three brothers is concerned, the appellate court has discussed evidence in details in paras.10 and 11. It referred to mutation entry No.324, whereby Yashodabai, appellant Chudaman and Respondent No.1 Ramsingh were shown as owners. In cultivation columns also their names were shown and they were to be personally cultivating the land. In paragraph 11, it is discussed that though the word "Samaik" (common) was used, entries in Exhibit 23 showed that appellant, Respondent No.1 and Yashodabai each had 1/3rd share. Exhibits 24 and 25 filed in the trial Court and Exhibit 12/1 in the District Court made it clear that survey No.162 had been accordingly sub divided in three parts i.e. survey Nos.162/1 admeasuring 2 6 hectare 76 R. which was owned by Yeshodabai, survey No.162/2 admeasuring 2 hectare 77 R. owned and possessed by plaintiff-appellant and survey No.162/3 admeasuring 2 hectare 77 R. owned and possessed by Ramsing. Thus, there was separate cultivation of separate portions since 1980. 8. At Exhibit 37, there is Sanad issued by the office of District Inspector of Land Records to Respondent No.1. Similarly, Exhibit 38 showed that portion of suit house was allotted to Hirasingh and it was entered in the name of Yashodabai. it was given CTS No.288. Exhibit 12/2 indicated that the plaintiff's portion in suit house was given CTS No. 285. Considering these circumstances and admission by plaintiff in cross examination that there was separate residence of three brothers, it was held that there was partition effected during lifetime of Hirasing. 9. In view of partition between three brothers, Yashodabai, who succeeded Hirasing as his widow, had right to sell landed property of Hirasing. So far as house property inherited by her is concerned, definitely it is inherited by appellant and 7 respondent No.1 and as such the decree for partition is allowed so far as suit property is concerned. 10. The conclusion drawn by the learned appellate judge is based on evidence on record. Hence, no interference is called for in the impugned judgment and decree. Second appeal is, therefore dismissed. pnd/sa136.90 (P.R.BORKAR, J.)