1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 816 OF 2005 Dagdu Bhaguji Kandekar, age: 64 years, Occ: Agriculture, R/o Hamidpur, Tal. Nagar, District Ahmednagar, presently residing at Purander, Tal.Saswad, District Pune. Appellant Versus Deoram Bhaguji Kandekar, since deceased, through L.Rs.: 1 Laxmibai Deoram Kandekar, age: 70 years, Occ: Agril.; 2 Bhausaheb Deoram Kandekar, age: 50 years, Occ: Agri., 3 Bhivsen Deoram Kandekar, age: 45 years, Occ: Agri., 4 Popat Deoram Kandekar, age: 40 years, Occ: Agri., All R/o Hamidpur, Taluka and District Ahmednagar. 5 Smt.Shantabai Raghunath Padir, age: 50 years, Occ: Agri., R/o Takli (Khatgaon), Taluka and District Ahmednagar. Respondents 2 Mr.R.R.Karpe, advocate for the appellant. Mr.P.S.Pawar, advocate holding for Mr.R.K.Jadhavar, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 26th August, 2009. P.C.: 1 This is an appeal by original plaintiff raising exception to the judgment and decree dated 18.11.2004, passed by I Ad hoc Additional District Judge, Ahmednagar in Regular Civil Appeal No.234/1988, whereby the first appellate Court has reversed the judgment and decree passed by the trial Court and directed dismissal of the suit. 2 Plaintiff instituted suit against defendant, who is his real brother, claiming decree of perpetual injunction in respect agricultural property. It is also claimed by the plaintiff, in the alternative, that in the event if he fails to establish his possession, he may be directed to be put in possession over the suit property. Plaintiff came with the contention that there was earlier partition effected by their father in respect of suit property, in view of execution of document of partition in the year 1962. The certified copy of the document, which was presented in earlier litigation i.e. Regular Civil Suit No.381/68, is placed on record by the plaintiff. Relying upon the document of partition, plaintiff states that there was previous partition between the parties and suit property has fallen to his share. 3 The trial Court accepted the contention raised by the 3 plaintiff and decreed the suit. An appeal was presented by the defendant raising exception to the judgment and decree passed by the trial Court. According to the defendant, there was no partition effected between the parties. He also contended that suit property belongs to him. 4 The first appellate Court, after considering rival contentions, came to the conclusion that there was no partition effected between the parties and plaintiff has failed to establish his case. 5 It has been brought to my notice that there was earlier litigation in the shape of Regular Civil Suit No.381/1968. Suit was presented by Devram, defendant in the instant suit and plaintiff was also impleaded as defendant no.2 in the said suit. Father of plaintiff and defendant Bhagoji was impleaded as defendant no.3 in the said suit. Plaintiff, relying upon the document placed on record at Exhibit-96 in the said suit, contended that partition was effected by defendant no.3 Bhagoji and plaintiff and defendant are in possession in pursuance to the arrangement made by their father. However, contention raised by plaintiff as well as defendant no.2 in the said litigation as regards division of shares at the instance of defendant no.3 - father, in the said litigation, has been negatived by the trial Court. A specific finding has been recorded in the said suit that there has been no partition by mets and bounds and there was merely a temporary arrangement to avoid quarrel amongst brothers and suit property continues to be the joint family property. In view of the finding recorded in R.C.S. No.381/1968, wherein plaintiff and defendant, both were impleaded as parties and upon 4 proper contest, the Court has recorded a finding that there was no previous partition in respect of the suit property and property continued to remain joint family property, the question raised in the instant litigation in respect of partition and separate shares is not open for consideration. The conclusions reached by the first appellant Court do not call for any interference. No substantial question of law arises for consideration in the appeal. 6 Appeal, therefore, stands dismissed. In view of dismissal of appeal, Civil Application No.5329/2005 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa81605 5 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.5770 OF 2009 IN SECOND APPEAL NO. 816 OF 2005 Dagdu s/o Bhaguji Kandekar Applicant Versus Deoram s/o Bhaguji Kandekar, deceased through L.Rs. Respondents CORAM: R.M.BORDE, J. DATE : 26th August, 2009. P.C.: This is an application for bringing on record legal heirs of deceased sole respondent as well as for condoning delay occurred in presenting the application. Heard learned Counsel for respective parties. For the reasons stated in the application, application is allowed. Delay of 1025 days occurred in presenting the application stands condoned. Legal heirs of deceased sole respondent are permitted to be brought on record. Record be amended accordingly. Civil Application stands disposed of. (R.M.BORDE) JUDGE ******* adb/sa81605