( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 787 of 2009 WITH CIVIL APPLICATION NO. 11533 OF 2009 Hanumant s/o. Rajendra Jadhav and anr. .. Appellants Versus Suryabhan s/o. Sitaram Kadam and ors. .. Respondents Shri S.S. Choudhari, Advocate for the appellants. Shri V.D. Salunke, Advocate for respondent No.4. CORAM : P.R. BORKAR,J. DATED : 23.03.2010 P.C. :- 1. This second appeal is filed by the original plaintiffs being aggrieved by dismissal of the suit for declaration and injunction filed by them bearing Regular Civil Suit No. 168 of 1991, decided by the Civil Judge, Junior Division, Kallam, on 11.04.2002, which judgment and decree is further confirmed in Civil Appeal No. 86 of 2002 by the Principal District Judge, Osmanabad, on 07.07.2009. 2. Briefly stated it is case of the appellants/ ( 2 ) plaintiffs that the suit land block No. 21 admeasuring 1 Hectare 70 R situated at Lohata, Tal. Kallam, was exclusively owned by the plaintiffs. It was property belonging to their grandfather Ramrao. Rajendra was son of Ramrao who had expired in 1972 leaving behind plaintiff No.1 - son and plaintiff No.2 - widow. It is stated that on 14.10.1983 partition had taken place between Ramrao, who was Karta of the family, and the plaintiffs and the land was allotted to the share of the plaintiffs. It is stated that after partition, the land was sold by Ramrao to defendant No.3, as per the agreement of sale executed by Ramrao and defendant Nos. 1,2 and 4. The agreement of sale was executed on 10.09.1983 and the sale deed was executed on 23.02.1984. 3. The Trial Court and the First Appellate Court did not believe case of partition and allotment of the land to the plaintiffs. It is stated that the plaintiffs/appellants failed to prove title and possession over the suit land and hence they are not entitled to possession and declaration. ( 3 ) 4. At the time of arguments before this Court Adv. Shri S.S. Choudhari for the appellants argued that the partition had taken place in May 1983 and it was memorandum of partition which was executed on 14.10.1983 and as such registration of deed was not required. Both the Courts below have held that the document Exh. 70 was a partition deed. It is argued by Adv. Shri V.D. Salunke for respondent No.4 that no case of deed being memorandum of partition was argued before the Trial Court and the First Appellate Court. After going through the judgment of both the Courts, it does not appear that the advocate for the appellants/plaintiffs argued before the Trial Court or the First Appellate Court that the document dated 14.10.1983 was not partition deed, but it was a memorandum of the partition which was previously effected. 5. The learned advocate Shri Salunke also drew my attention to para 3 of the plaint and argued that it clearly indicates that on the very day on which the partition was demanded, a meeting was called, which was attended by Vishwanath Adsul, Subrav Adsul, Mahadeo Adsul & others and the partition was effected and the document was executed at the time of partition i.e. on 14.10.1983. In view of ( 4 ) specific pleading from para 3 of the plaint, in my opinion, no new case can be allowed to be made out in second appeal. 6. Admittedly, the suit was filed on 28.08.1991; whereas the sale-deed is executed on 23.03.1984. So, the suit is filed after nine years. As per paper-book made available by the learned advocate for the respondents, there was no prayer for setting aside sale-deed on the ground that it was not for legal necessity or benefit of estate and as such not binding on minor plaintiff No.1. It is a simplicitor suit for declaration of title and injunction. In view of above, no substantial question of law arises. The questions which arose were properly dealt with by both the Courts below. There are concurrent findings of fact. Hence, this Second Appeal is dismissed in limine. 7. In view of dismissal of the Second Appeal, Civil Application No. 11533 of 2009 does not survive and it is disposed of as such. [P.R. BORKAR,J.] snk/2010/MAR10/sa787.09