IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 89/2010 SMT. CHANDRABAI NANAJI TATEWAR AND OTHERS ..VS.. SITARAM @ SHIVDAS ZIBAJI TATEWAR AND OTHERS -------------------------------------------------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, and Registrar's orders Court's orders of directions - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. A.V.Bhide, learned counsel for Appellants Mr. F.T.Mirza, Advocate, for respondent Nos. 1 & 2. CORAM : Smt. VASANTI A NAIK, J. DATE : 26 th FEBRUARY, 2010 Heard Shri Bhide, learned counsel for the appellant and Shri Mirza, learned counsel for respondent Nos. 1 & 2. The appellants are the original plaintiffs. They had filed a suit for declaration that Defendant Nos. 1, 2 & 3 had no right to sell the suit properties to the Defendant Nos. 5, 6 & 7, as the properties were jointly owned by the plaintiffs and defendant nos. 1, 2 & 3. It was pleaded that the plaintiffs were the legal heirs of one Nanaji, brother of Zibaji and Defendant Nos. 1, 2 & 3 are sons of Zibaji. In a suit filed by Defendant No.1 against Zibaji and Nanaji for partition and separate possession in the year 1977, preliminary decree was passed. It is the case of the plaintiffs that a final decree was not passed in that case and the property remained to be partitioned between the plaintiffs and Defendant Nos. 1, 2 & 3 by metes and bounds. In such circumstances, according to the plaintiffs, the defendants did not have any right to sell the suit properties to defendant Nos. 5, 6 & 7. The defendant Nos. 1, 2 & 3 denied the case of the plaintiffs and pleaded that the joint properties of Zibaji and Nananji were partitioned in the year 1978. Zibaji had by a will made a bequest of the suit properties to the defendant nos. 1, 2 & 3. According to the defendant nos. 1, 2 & 3, the suit was liable to be dismissed. The trial Court held that the defendants had failed to prove that there was a partition of the properties in the year 1978 between Zibaji and Nanaji. The Court further held that the will executed by Zibaji was valid to the extent of half share in the properties. The trial Court partly decreed the suit of the plaintiffs by declaring that the sale of the suit properties in favour of defendant nos. 5, 6 & 7 was valid to the extent of half share in the properties sold to them. The trial Court directed the defendants 6 & 7 to deliver the possession of the half portion of the properties purchased by them to the plaintiffs. The defendants did not challenge the judgment and decree passed by the Trial Court on 17.10.2001. The first Appellate Court by the judgment dated 2.9.2006 dismissed the appeal filed by the plaintiffs. All the other findings recorded by the trial Court were maintained except the finding that the properties were not partitioned between Zibaji and Nanani in the year 1978. The first Appellate Court held that the properties were partitioned between Zibaji and Nanaji in the year 1978. The first Appellate Court while holding that there was a partition of the properties, heavily relied on the admissions of the plaintiff no.1 in his cross examination. On a perusal of the cross examination, it is clear that the plaintiff no.1 had admitted the partition of the properties owned by Zibaji and Nanaji after passing of the decree in the partition suit in the year 1978. The findings recorded by the Court are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise any substantial question of law. In the result, the appeal fails and the same is dismissed with no order as to costs. JUDGE Rvjalit