:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL SECOND APPEAL SECOND APPEAL NO.452 OF 2008 NO.452 OF 2008 NO.452 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.1071 OF 2008 CIVIL APPLICATION NO.1071 OF 2008 CIVIL APPLICATION NO.1071 OF 2008 Smt. Nita Narendra Patil & Ors. ...Appellants. v. Smt. Godavari Daji Sankhe ...Respondent. Mr.Yogeshwar S. Bhate with Mr.S.K.Sthalkkar , advs. for the Appellants. Mr.Nandkumar Daji Sankhe, power of attorney holder present. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 7th July, 2008. DATE: 7th July, 2008. DATE: 7th July, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the appellants and Shri Nandkumar Daji Sankhe, who is power of attorney holder for the respondent. The respondent is the original plaintiff and she had filed the suit for injunction restraining the defendants/appellants from causing interference in her possession over the suit property bearing Survey No.84/1 admeasuring 0-61-1 R. It is her contention that the partition had taken place between her husband Daji and the defendant Vasudeo, since deceased, sometimes in 1968-69 and since then the property was in possession of her husband and she is also in possession. The defendant and his legal heirs contended that partition had never taken place and the property is still joint and, therefore, the suit for :2: injunction is not tenable. Both the Courts below came to conclusion that in the year 1968, the partition had taken place and memorandum of partition dated 10-8-68 was prepared and signed by the parties and the witnesses. Taking into consideration the evidence on record, both the Courts below accepted the claim of the plaintiff and the suit came to be decreed. The Appeal filed by the defendants also came to be dismissed. Hence, the defendants have preferred the Second Appeal. 2. The learned counsel for the appellants have taken me through the evidence and some documents. It appears that the partition had taken place on 10-8-1968 and memorandum of partition, Ex.50 was drawn and signed. Attesting witness Hareshwar Damodar Sawe has been examined before the Court to prove that the partition had taken place between the parties. The learned counsel pointed out that this document was not acted upon and no mutation entry was taken on the basis of this document. It appears that only because the mutation entry was not taken on the basis of partition, the defendants claim that partition had not taken place. On the other hand, it appears that parties had actually acted upon the said partition. Firstly, the deceased Daji, husband of the plaintiff had sold the land survey no.84/1 in favour of the Hareshwar Damodar Sawe and Kashinath Dharma Churi for a consideration of Rs.1500/-. The consideration was received by Daji. But only :3: because in the records of revenue, both the brothers were shown as owners, the document was executed by both of them. Later on , this property was received back from the said purchasers by Daji. Not only this, the defendant no.1/5 Jayawant Vasudeo Sankhe, son of the original defendant Vasudeo was examined as the witness. He also admitted in cross-examination that his father Vasudeo had sold the land bearing Survey Nos.47/5 and 47/4 to Ramchandra Dharma Churi and Kashinath Dharma Churi. Taking into consideration these admissions, it is clear that parties had infact acted upon the said partition. 3. According to the learned counsel, the document Ex.50 is a partition deed and was not registered and, therefore, it could not be admitted in evidence and relied upon. However, the Courts below after perusal of the contents of the same came to conclusion that it was not the partition deed but the memorandum of partition and it has been acted upon. 4. In view of these circumstances, I do not find any substantial question of law involved in the matter. In the result, Second Appeal stands dismissed summarily. 5. As the appeal itself is disposed off, civil application does not survive and stands disposed off accordingly. :4: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)