1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 89/2008 Bhaskar Atmaram Jagtap & Ors. ..vs.. Samadhan Atmaram Jagtap & 2 Ors. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. -------------------------------------------------------------------------------------------------------------------------------------- Mr. Khan, Advocate for the appellants. Mr. Khandalkar, Advocate for respondents. CORAM: B. P. DHARMADHIKARI, J. DATED : 9 th JANUARY, 2009 1. Heard learned counsel for the parties. 2. The appellants have challenged the reversing judgment delivered by lower Appellate Court. Learned counsel for the appellants contended that the suit filed by the present respondents was for declaration and injunction on the ground that by virtue of sale deed dated 11.06.1999 and Will Deed dated 30.06.1998, respondent no. 1 has become owner of 3 Acres land from Southern side of Gat no. 313. He states that both the Courts have found that the entire land is in possession of the present appellants. He contended that in the circumstances relief of partition could not have been given and direction to partition the property given by lower appellate Court is inconsistent. 2 3. Mr. Khandalkar, learned counsel for the respondents states that during pendency of appeal the plaint was amended to add relief of partition and separate possession and after framing additional issues appeal was disposed of on merits. 4. I have perused both the judgments with the assistance of learned counsel for the parties. Learned trial Court framed eight issues and found that the respondents could not prove their ownership and possession on the basis of Will dated 30.06.1998 and Sale Deed dated 11.06.1999. It, therefore, dismissed the suit. The Lower appellate Court found that the original plaintiff being one of the co-owners was not entitled to relief of injunction or of exclusive possession. However, in view of the additional issues framed by the Court after amendment, it has granted relief of partition to respondent no. 1-plaintiff and after declaration that the plaintiffs and defendant acquired interest by virtue 3 of sale deed at Exh.-76 and 86. It, therefore, passed order allowing appeal and decreeing the suit for partition. 5. In the circumstances, I find that no substantial question of law arises in the matter. The appeal is, therefore, dismissed with no order as to costs. JUDGE kahale