1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.650 OF 2002 Trimbak Patilbuva Takate & Ors. ..Appellants V/s. Ramchandra Govind Takate (Since deceased through LR's) Uttamrao R.Takate & Ors. ..Respondents Mr.M.M.Sathaye for the Appellants/Applicants. Mr.Ramesh Dube Patil i/b. Sunil Kadam for the Respondents. CORAM : R.M.SAVANT, J. DATED : JULY 29TH, 2008. P.C. This Second Appeal arises out of the Judgment and Decree dated 16th June, 2001 passed by the learned Additional District Judge, Nashik by which the decree passed by the Trial Court in 2 Regular Civil Suit No.83 of 1987 came to be confirmed. 2. The Appellants are the original Defendants in the suit filed by the original Respondent No.1 Ramchandra Govind Tatake. The said suit was for injunction in respect of land bearing Gat No.458 ademasuring 80R situated in Village Karsul and land Gat No.336B. It was the case of the Plaintiff that the said suit land has come in his possession pursuant to the partition that took place in the year 1976 between the three brothers i.e. Patilbuva, Motiram and Ramchandra. The present Respondents are the heirs of Ramchandra, whereas the Appellants are the heirs of the Patilbuva and Motiram. It was the case of the Defendants that the said property being Gat No.458 is the self- acquired property of Motiram and so far as Gat No.336B is concerned, it is joint family property. 3 3. The parties went to Trial, on the basis of the material that was before the Trial Court, the Trial Court decreed the suit by holding that in so far as Gat No.468 is concerned, it has come to the share of Ramchandra in the partition that took place in the year 1975-76 between the brothers and in so far as Gat No.336B is concerned, the Trial Court held that in the said partition the said property was given to the share of their mother for her maintenance during her life time and after her death the said three brothers were entitled to 1/3rd share each. The Trial Court held that in so far as the said Gat No.336B is concerned, the three brothers have started and enjoying their 1/3rd share separately by cultivating it. The Trial Court therefore decreed the said suit and while decreeing the same in so far as Gat No.336B is concerned, the Trial Court ordered that the joint possession in respect of Gat No.336B should not be obstructed by the Appellants herein. The Trial Court also relied 4 upon the Judgment and orders passed in Regular Civil Suit No.368 of 1980 which was filed by Motiram for partition and Regular Civil Appeal No.103 of 1983 which was filed by Motiram after the said suit came to be dismissed. The Trial Court relying upon the Judgment and order passed in the said proceedings came to a conclusion that so far as the Gat No.458 is concerned, the fact that the same had come to the share of Ramchandra is no more Res-integra and has been concluded by the Judgment and order passed in the said Regular Civil Appeal No.103 of 1983. The Trial Court therefore decreed the suit to the said extent. 5. Being aggrieved by the decree passed by the Trial Court dated 4th July, 1996, the Defendants filed Regular Civil Appeal No.76 of 1996 wherein the decree passed by the Trial Court came to be confirmed. Therefore there are concurrent findings against the Appellants in respect of the 5 entitlement of the Plaintiffs for injunction qua Gat No.458 and 336B. 6. The learned counsel for the Appellants submits that in so far as Gat No.336B is concerned, though the courts below have recorded a finding that there has been no actual partition and that the parties have been cultivating their 1/3rd share each in the said land, the Trial Court has granted the injunction in respect of the joint ownership of the Plaintiffs in respect of the said Gat No.336B which cannot be granted. The learned counsel therefore submits that the said injunction would necessarily have to be restricted in the light of the finding of the Court below in respect of the 1/3rd share of the Plaintiff Ramchandra who is cultivating his share as per the said finding. 7. In my view, though in the light of the concurrent findings recorded by the Courts below, 6 no substantial question of law arises for consideration in the Second Appeal. Considering the decree passed by the Trial Court, it would be required to be quantified that the injunction would have to be restricted to the 1/3rd share of Ramchandra in the said land Gat No.336B. The decree stand modified accordingly. With the aforesaid direction, the above Second Appeal is, dismissed. [R.M.SAVANT, J.]