1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.998 OF 2005. with CA NO.6441 OF 2005. 1) Bhaurao s/o Shamrao Mulay and others - APPELLANTS VERSUS 1) Shantabai w/o Uttam More and another - RESPONDENTS ***** Mrs.SG Chincholkar,Advocate for Appellants; Mr.KT Shirurkar, Adv.h/for Mr.PG Rodge,Advocate for Respondent No.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 23rd April, 2010. PER COURT : 1) Heard Smt.Chincholkar and the Counsel holding for Mr. Rodge. 2) The concurrent findings recorded against the Defendant nos.1 to 4 are challenged in the Second Appeal. 3) The Counsel for the respondent informs 2 that indeed the matter is settled between the parties and nothing survives. Smt.Chincholkar expressed her inability to comment for want of communication from the appellant - Bhaurao since long. 3) After hearing the learned Counsel for the appellants extensively, I do not see any point to formulate a substantial question of law between the parties for additional reasons. The mistake committed by the plaintiff in giving her relation with defendant no.1 to be a cousin and defendant no.1 stating her to be a niece, will not change colour and complexion of her rights. The earlier partition, effected before 50 years between the branches, is established by Rangarao, 93 years old person, supported by a long drawn mutation entries of separate possession. 4) The learned Counsel for the appellants submits, the properties have changed the hands may be true, however, specifically the plaintiff has asserted her rights to the property with survey numbers. Even if it had changed the hands, the defendants before the Court are bound to face the music, which the learned Judge has rightly dealt with. The next objection was, it was a suit for declaration and possession without any relief of partition. One should not be 3 oblivious, the plaintiff was only the surviving member of deceased Babarao and she squarely falls within the category of `survivor’ in terms of Section 8 dealing with general Rules of succession in case of males having putting himself in Class-I heirs specified under the Hindu Succession Act, 1956. Her share being specific, she was not required to file a suit for partition. The observation of the learned Judge by formulating the Issue No.3 about the partition by itself will not mitigate her claims to stake rights in the properties. 5) The appeal does not project any substantial question of law, it is dismissed with CA. No cost. (K.U.CHANDIWAL) JUDGE bdv/sa998.05