1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 600 OF 2003 Manjabapu Vithoba More & another .. APPELLANTS VERSUS Yadav Vithoba More & others .. RESPONDENTS Shri V.S. Bedre, Advocate for the appellants. Shri D.R. Jaybhar, Advocate for respondent no.1. Respondent nos. 2 to 5 served. Respondent no. 6 dismissed as per court order dt. 30-3-2009. ===== CORAM : R. M. BORDE, J. DATE : 16 th September 2009 PER COURT : 1 This is an appeal by original defendant nos. 1 and 2 raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 59/1995 claiming 1/3 rd share in the suit property. Plaintiff and defendant nos. 1 and 2 are the brothers interse. Defendant no. 3 claims herself to be niece of one Tuma who died in 1987. It is contended that on his demise the property devolved upon his sisters Venubai and Nanubai. Nanubai died issueless. Plaintiff and defendants are the sons of born to Venubai. According to the plaintiff, there 2 was no partition in respect of the property and he is entitled to have share to the extent of 1/3 rd in the property left behind by Nanubai. 3 Defendant no. 3 appeared and controverted the contentions by filing written statement. According to her, she is niece of deceased Tuma and as such she is entitled to the property. Written statement presented by defendant no. 3 came to be adopted by other defendants. 4 Trial court after considering the evidence led by the parties decreed the suit presented by plaintiff and held him entitled to have 1/3 rd share in the suit property. Being aggrieved by the judgment and decree passed by the trial court on 18-8-1997, defendant nos. 1 and 2 presented Regular Civil Appeal no. 391/1997 which came to be heard and disposed of by District Judge, Ahmednagar who was pleased to dismiss the same. 5 I have perused the judgments passed by both the courts below. It is contended by learned counsel for the appellant that Jijabai was the niece of Tuma and on his demise she was entitled to the property. According to him, computation of shares by the trial court is not correct. It is not disputed that the property belonged to deceased Tuma who had two sisters by name 3 Venubai and Nanubai. It is also not disputed that Nanubai died issueless during the pendency of the proceeding. In these circumstances, plaintiff and defendants being the successors of Venubai are entitled to have share in the property. So far as contention that defendant no. 3 being niece of deceased Tuma is entitled to succeed to the property concerned. It is born out from record that defendant no. 1 himself has admitted in his cross examination that deceased Tuma had no brother and as such defendant no. 3 could not claim herself to be the niece of deceased Tuma. Thus, defence raised by defendants is not substantiated. Although defendant no. 3 presented her written statement she did not step into witness box. Defendant no. 3 also has not raised challenge to the decree passed by the trial court. In this view of the matter, judgment and decree passed by the trial court which has been confirmed by the first appellate court does not call for any interference. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.)