1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Second Appeal No. 1059 of 2004 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Advocate Shri M.R.Challani, for appellant and Advocate Shri S.G.Rudrawar for Respondent Nos.3 to 6. 2. Learned counsel took me through the judgments of the trial court and the first appellate court. Suit was for partition and possession. One of the main reasons for dismissal of the suit for partition was that there was previous partition alleged and proved by Respondent-defendants. Both, the trial court and the first appellate court, have held that there was previous partition. We find discussion about the same in paragraphs 16 and 17 2 of the District Court's judgment, wherein it is mentioned that in Regular Civil Suit No. 461 of 1983 filed by present appellants they have admitted that city survey No. 332 was allotted to them in partition and it is held that indirectly by that pleading, previous partition was supported. 3. It is further stated that on behalf of Respondents, Sheshrao Daspute is examined as witness. According to him, suit property was partitioned fifty years ago and effect to the same was given in the record of rights. Respondent No.7 produced certain documents at Exhibits 54 to 66. It is alleged that those were produced after evidence of the plaintiff was over, but it was rightly observed by the District Court that they were public documents, such as, Khasra Patrak, mutation entries and 7 x 12 extracts. So, it was held that those were the documents forming previous record of the suit property. 3 It is stated that at Exh.58, there is mutation entry dated 18.7.1971 indicating that there was partition between Pathaji and Bhagaji. At Exh. 59, there is an application dated 22.3.1969 for mutation in the name of legal heirs of defendant and there was no name of heirs of Pathaji and had there been name of Pathaji as karta of the family, only name of his heirs would not have been shown. Even if such act was done by heirs of Pathaji, present appellant would have taken objection to the same. It is to be noted that mutation was made on the basis of application filed on 22.3.1969. At Exh.60, there is mutation entry No.439 regarding partition between Sheshrao and his brother Machindra. If there was no general partition, question arises how there could be partition effected between these two brothers in respect of block No.16. Such a mutation would have been immediately objected to by other co-parceners. The District Court further observed that there is 4 mutation entry No.403 at Exhibit 61 and it shows that Bhagaji had sold block No.16 to one Gorakhnath for Rs. 5,000/= by a registered sale deed dated 27.4.1988. The First Appellate Court has also observed that 7x12 extracts and extracts of consolidation scheme, indicate that the property was partitioned between the Respondents long back and the Appellants never objected to such partition. 4. Here, in this case plaintiffs - appellants are as many as five in number. At least one of them would have objected by making an application to revenue authorities. Mutations sanctioned show that Respondents were treating the property already partitioned and alloted to their share. It is also observed by the District Court that the appellants have not led any other evidence which is satisfactory and to show that the property was still joint. 5 5. There are concurrent findings of fact. Finding regarding previous partition is recorded by both the courts below after considering oral, as well as documentary evidence. View taken by both the courts, therefore, cannot be said to be perverse or not based on evidence produced on record. It is not that the evidence on which the conclusion is based was not admissible in law. It is not argued that some piece of evidence which was admissible was not considered. In Second appeal, this court has limitation, in view of section 100 of C.P.C. Appeal can be admitted only if substantial question of law arises. The basic issue, whether the properties were joint or were already partitioned has been decided concurrently by both the courts. In this view of the matter, second appeal does not raise any question of law. Hence, the appeal is dismissed at the admission stage itself. Date:25.06.2009 pnd/sa1059.04 (P.R.BORKAR,J.) 6