1 SA 204.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 204 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.K.F.Shingare, Advocate for the appellant. Mr. G.P.Mapari, Advocate for Res.Nos. 1 to 4. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/04/2011 PER COURT : 1. This is an Appeal by the original plaintiff, who had filed Suit for declaration and possession in respect of the suit property. The trial Court dismissed the Suit The defendants preferred an Appeal. The appellate court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. Aggrieved thereby the plaintiff has filed the present Second Appeal. 2. Mr. K.F.Shingare, the learned counsel for the appellant strenuously contends that the Courts below have not taken into consideration the 2 SA 204.2011 admissions given by the defendant in his evidence substantiating the fact of partition effectuated on 1/1/1961 in which the suit property was given to the share of the present appellant. When once the partition had already taken place in the year 1961, no question arises of repartition of the properties in the year 1985. According to the learned counsel, the plaintiff had explained the circumstances under which the signatures were obtained by mis-representation and coercion on the partition deed dated 4/1/1985, but the said evidence has not been considered by the Courts below. The learned counsel further submits that even the properties which are sold, as has been discussed by the Court, the same are with the consent of the defendants. The learned counsel further contends that the said alleged partition of the year 1985 can not be even said to be legal and valid in as much as in the year 1985, mother was alive and she was not given any share, so also, the sister is not given any share. This circumstance also shows that no partition was effectuated. 3. Per contra, Mr. Mapari, the learned counsel for the respondents submits that both the Courts on appreciation of evidence have accepted the partition deed dated 4/1/1985. The same is a registered partition deed. The same was acted 3 SA 204.2011 upon. The mutations were effectuated pursuant to the same. The partition of 1/1/1961 as claimed by the plaintiff was merely a family arrangement meant for the purpose of the Ceiling Act. The same was not acted upon and as such the parties on 4/1/1985 had partitioned the property. The plaintiff has sold out the properties, which were allotted to him in partition deed dated 4/1/1985. 4. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 5. No doubt, initially, on 1/1/1961 it is shown that the properties were partitioned. It is the case of the defendants that the same was a family arrangement and the same was never acted upon. This fact is substantiated by the circumstance that in spite of the alleged partition of 1961, the mutation entry No. 16 showed that the land G.No. 131 and 122 stood in the name of plaintiff and defendants to the extent of 50 % each, so also, other mutation entries were not pursuant to the said partition of 1961. The Courts have observed that this led credence to the theory of the defendants that in the year 1961 only the family arrangement was made. The partition deed dated 4/1/1985 is a registered partition deed. Pursuant 4 SA 204.2011 to the said registered instrument, the mutation entries were effected in favour of the parties to whom the respective lands were allotted showing thereby that the said partition of 1985 was acted upon. Further, the lower appellate Court in para no. 21 of its Judgment has also discussed that all the properties which were given to the share of plaintiff in partition of the year 1985 were sold by the plaintiff by registered sale deeds to various persons and the plaintiff after a long slumber of 22 years, had filed the present Suit. All these attending circumstances have been discussed by the Courts below and have arrived at a plausible conclusion. Simply because the factum of the said family arrangement had taken place in the year 1961, that would not be sufficient to discard the defendants’ theory about the partition in the year 1985 and that in the year 1961, the same was only the arrangement which was not acted upon. 6. The view taken by the Courts below is based on appreciation of evidence oral as well as documentary coupled with attending circumstances, such as mutation entries effected pursuant to registered partition deed dated 4/1/1985, sale of all properties by the plaintiff allotted to his share by partition deed dated 4/1/1985. The said view is a plausible view. In 5 SA 204.2011 light of that, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. 8. At this stage, Mr. Shingare, the learned counsel for the appellant states that during the pendency of the proceedings before the Court below, the defendants had given undertaking that they would not alienate and create third party interest. The same is continued till 30/4/2011. The appellant would like to challenge the Judgment before the Apex Court and the same protection may be continued. 9. The learned counsel for the respondents on instructions of his clients undertakes to continue the said undertaking for further period of six ( 6 ) weeks from today. [ S.V. GANGAPURWALA,J. ] KNP/SA 204.2011