1 SA 623.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 623 OF 201 0 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.M.P.Kale, Advocate for the appellant. Mr. Dalal, Advocate for the Resp.Nos. 1 to 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 25/04/2011 PER COURT : 1. This is the Appeal by the original defendants. The present respondents had filed Suit for partition and separate possession. The plaintiffs are claiming share from the share of defendant no. 1. The trial Court decreed the Suit, allotted plaintiffs 1/3rd share each from the 1/5th share of defendant no. 1. The defendants preferred Appeal. The appellate Court partly allowed the Appeal and granted 3/48th share to the plaintiffs. The defendants aggrieved thereby have filed the present Second Appeal. 2. Mr. M.P.Kale, the learned counsel for the appellants submits that when the documents were 2 SA 623.2010 produced before the Court in the shape of Exh. 78, 86 and 89, the evidence for partition between four ( 4 ) brothers, then the same should have been considered by the Court. The Courts have relied on minor contradictions of the witnesses and disbelieved the same. According to the learned counsel, it was also erroneous on the part of the Court below to suggest that as the said partition deeds were not registered, they were not admissible. The learned counsel further contends that the defendant no. 1 was suffering from Tuberculosis and as such the defendant no. 1 was in need of money and for the said purpose had parted with 3½ Acres of suit land in favour of defendant no. 2 and 3 Acres in favour of defendant no. 3 for consideration. This aspect has also not been considered by the Court below. 3. Per contra, Mr. Dalal, the learned counsel for the plaintiffs submits that the Court below on evaluation of evidence has disbelieved the contention of the defendants about the partition in the year 1990. According to the learned counsel, whether the partition had taken place between the defendant no. 1 and his brothers is immaterial as the plaintiffs would be getting share from the share of their father i.e. defendant no. 1. More over, the defendant nos. 2 and 3 have come up 3 SA 623.2010 with a false case that defendant no. 1 was suffering from Tuberculosis and to raise money, had parted with the said property. The Courts have rightly disbelieved the same without any document on record. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. The existence of the joint family and the joint family property is not a disputed fact. The plaintiffs are claiming through defendant no. 1. As such, whether the partition had taken place between the defendant no. 1 and his brothers would not be relevant at this stage. Even if the defendants prove interse partition between defendant no. 1 and his brothers in the year 1990, that would not affect the share of the plaintiffs. More over, the Courts have dilated on the evidence that has been led and have recorded the finding that the said partition deeds do not inspire confidence. The case put-forth by the defendants that the defendant no. 1 was suffering from Tuberculosis and have parted with the suit property in favour of defendant nos. 2 and 3 has been disbelieved by the Courts. The defendants have made a reference of bainama/sale deed but the same has not been produced on record. The 4 SA 623.2010 details have not been given. In absence of any registered document, the defendants could not have transferred any part of the property. 6. Both the Courts below on evaluation of evidence have come to the just conclusion. 7. In light of the above, the Second Appeal does not involve substantial question of law, as such is dismissed, however with no order as to costs. 8. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 623.2010