1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 107 OF 2007 Shri Jagannath s/o Fakira Patil & others .. APPELLANTS VERSUS Raghunath s/o Fakira Patil & another .. RESPONDENTS Shri V.D. Sapkal, Advocate for the appellants. Shri A.G. Talhar, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 20th July, 2009. PER COURT : 1 Original defendant nos. 3, 4, 7, 8 and 9 are raising exception to the concurrent findings recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 161/86 claiming partition and separate possession of the ancestral property at the hands of defendant no. 1 Fakira. Defendant no. 1 Fakira is the father of plaintiff whereas defendant no. 2 was his mother. Defendant no. 3 Jagannath is another son of Fakira. Plaintiff comes to the court with contention that he is entitled to have separate share by effecting partition of the ancestral property. Defendants have controverted the contentions raised by plaintiff on several grounds. Defendant no. 3 contends that survey no. 95/1 was transferred in his favour 2 by defendant nos. 1 and 4 by executing sale-deed and as such, plaintiff has no entitlement to ask for partition. The courts below have adopted a view that the property being admittedly ancestral one, defendant no. 1 had entitlement to alienate an area which can be secured by him on partition. He had no entitlement to alienate the whole of the family property. Finding therefore has been recorded by the courts below that the sale-deed executed by defendant nos. 1 and 4 in favour of defendant no. 3 does not have binding effect on the entitlement of the plaintiff. 3 Learned counsel for the appellants has strenuously contended that the plaintiff has no entered into the witness box and in his place his son has deposed as his power of attorney. According to him, therefore, in the absence of the ocular evidence of plaintiff, it cannot be held that the case put up by plaintiff is proved and further that the power of attorney is not entitled to depose in respect of the subject matter which is within the personal knowledge of the plaintiff. Learned counsel has placed reliance on a judgment reported in AIR 1990 Supreme Court 1449 and has contended that finding ought to have been recorded that the plaintiff has failed to establish his case. Learned counsel for the appellant has also placed reliance on a judgment reported in AIR 2005 Supreme Court 439. 4 So far as ancestral nature of the property is concerned, both the courts below have recorded finding that the parties have admitted the nature of the property being ancestral one. It necessarily therefore follows that defendant no. 1 has no entitlement to alienate the property in favour of defendant no. 3 or one of the defendants. Defendant no. 1 will have 3 entitlement to transfer an area or the share which can be acquired by him on partition of the property. The courts below were justified in recording finding that the sale-deed executed by defendant nos. 1 and 4 will not bind on the plaintiff and the same would have binding effect on defendant no.1 to the extent of his share which can be carved out out of the said property. In these circumstances it cannot be said that the son of the plaintiff who is also a member of co-parcenary has no personal knowledge in respect of nature of the property. Examination of the son of the plaintiff as his power of attorney will not make any substantial difference in respect of the case put up by the plaintiff as it cannot be said that any fact stated is exclusively within the knowledge of the plaintiff has been stated and has been considered by the trial court. Reliance placed by the learned counsel for the appellants on the reported judgments therefore is misplaced. There does not arise any substantial question of law for consideration of the appeal. Questions raised are essentially the matters relating to appreciation of evidence. Appeal therefore stands dismissed summarily. ( R. M. BORDE, J.) dyb/office/sa107.07.odt