1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 839 OF 2009 1 Panditrao s/o Vishnu Joshi, age: 78 years, Occ: Agril., R/o Ghatshendra, Tq.Kannad, District Aurangabad. 2 Prabhavati w/o Balkrishna Joshi, age: 76 years, Occ: Agril., R/o Ghatshendra, Tq.Kannad, District Aurangabad. 3 Ushabai w/o Ramchandra Joshi, age: 51 years, Occ: Agri., R/o Tadegaon, Tq.Bhokardan, District Jalna. Appellants Versus 1 Ashok s/o Vyankatrao Joshi, age: 45 years, Occ: Agri., R/o Palshi, Tq.Soygaon, District Aurangabad. 2 Babibai w/o Ashok Joshi, age: 40 years, Occ: Agri., R/o Palshi, Tq.Soygaon, District Aurangabad. Respondents Mr.S.K.Rahane with Shri V.S.Rahane, advocate for appellants. Mr.S.M.Pachlore, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: 2 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the Courts below. 2 Respondents – original plaintiffs instituted Regular Civil Suit No. 177/2003 claiming decree of partition and separate possession of the ancestral property. Defendant No.1 is uncle of plaintiffs. Plaintiff no.2 is wife of plaintiff no.1, whereas, defendant no.2 is wife of brother of defendant no.1. Defendant no.3 is daughter of defendant no.2. Plaintiffs claim that they have been wrongly deprived of their share in the ancestral property by defendants. As such, they approached the Court claiming partition and separate possession. 3 Defendants appeared and resisted suit claim by filing written statement. According to defendants, plaintiff no.1 never asked for partition and separation of his share since long. It is contended that in 1949, father of plaintiff no.1 has relinquished his rights in the ancestral properties in favour of defendants. It is, thus, claimed that plaintiffs are not entitled to secure decree of partition and separate possession. 4 The trial Court, considering evidence led by the parties, reached conclusion that plaintiffs have established their case and as such granted decree in their favour. 5 Defendants, being aggrieved by the judgment and decree passed by the trial Court, approached first appellate Court by filing Regular Civil Appeal No.164/2008, which was heard and disposed of by District Judge-3, Aurangabad, who was pleased to dismiss the appeal by his judgment and decree dated 07.09.2009. 3 6 I have perused the judgments recorded by both the Courts below. So far as ancestral nature of the property is concerned, same is not disputed by defendants. It is also not disputed that plaintiffs have not been allotted any share in the ancestral property. Defendants have come with a case that father of plaintiff no.1 has relinquished his rights in the ancestral property. Reliance is placed on the document presented at Exhibit-52 written in Modi script and translation thereof in Marathi language. According to defendants, document, being 30 years old, same does not require formal proof. It is contended that said document is in the writing of father of plaintiff no.1 wherein there is mention in respect of relinquishment of rights in the property. The Courts below have not placed reliance on the said document for the reason that deed of relinquishment needs registration in view of Section 17 of Registration Act, 1908, subject property being of the value more than Rs.100/-. It is also observed that the document does not bear signature of executant. The reasons recorded by the Courts below for refusing to place reliance on the document appear to be proper. Any deed of relinquishment in respect of immovable property worth more than Rs.100/- needs to be registered. Apart from this, document in question does not bear signature of executant. The contention raised by defendants, thus, does not appear to have been substantiated. 7 Learned Counsel for appellants has submitted that suit presented by plaintiffs is beyond prescribed period of limitation and that defendants have become owner of the property by virtue of their continuous possession and that possession of defendants shall have to be treated as adverse to the right, title and entitlement of plaintiffs. However, as defendants have failed to raise this plea in their written statement specifically 4 before the trial Court, same cannot be permitted to be raised in the Second Appeal. No substantial question of law arises for consideration in the appeal. 8 Appeal, therefore, stands dismissed summarily. Civil Application No.12394 of 2009 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa83909