AGK IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.15 OF 2008 APPEAL NO.15 OF 2008 APPEAL NO.15 OF 2008 WITH WITH WITH SECOND SECOND SECOND APPEAL NO.18 OF 2008. APPEAL NO.18 OF 2008. APPEAL NO.18 OF 2008. Duryodhan Sarjerao Khomane ...Appellant (In both the appeals) Versus. Shri Dada Sahadu Khomane (Makar) & others ...Respondents (In both the appeals) --- Shri Kishor Patil i/by Smita More for the Appellant in both the appeals. Shri Rahul Kate for the Respondent No.1 in both the appeals. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 25th MARCH, 2008. : 25th MARCH, 2008. : 25th MARCH, 2008. P.C: P.C: P.C: 1. The submissions of the learned advocates appearing for the parties were heard on the last date. However, order was not passed as parties were exploring possibility of settlement. Today the learned advocates appearing for the parties state that there is no possibility of amicable settlement. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. There were two suits between the parties. Regular Civil Suit No.98 of 1996 was filed by the first : 2 : 2 : 2 : respondent (Dada) against the appellant (original defendant No.3 therein) and others. According to the first respondent his father Sahadu had two brothers Sarjerao and Saibu. The name of the father of the said three brothers was Dada. The first respondent’s name is also Dada who is the son of Sahadu. By a registered Partition Deed dated 24th August, 1958 there was a partition effected between three brothers and the suit property was kept common between Sarjerao and Saibu. According to the case of the first respondent, they were in joint possession of the suit property and they have constructed houses thereon. The prayer in the suit filed by the first respondent is for partition and separate possession. Thus, the first respondent filed the suit for partition and separate possession against the persons representing branch of Sarjerao. The suit was contested by the present appellant and other defendants. The contention of the appellant and other contesting defendants was that their grandfather Dada had married one Laxmibai. The said Dada performed second marriage with Vithabai. According to their case, the said Dada maintained Sahadu and Banabai who were children of Vithabai from her first husband. There were two sons begotten to Vithabai from the said Dada by the name Saibu and Sarjerao. A case is made out that Sahadu is not concerned or related with the said Dada. It is submitted that therefore the alleged partition of the : 3 : 3 : 3 : year 1958 was illegal as no share could have been allotted to said Sahadu. The trial Court held that there was a partition on 24th May, 1958 between Sahadu, Sarjerao and Saibu and the suit property was kept joint and common between them. The trial Court discarded the case made out by appellant and held that Sahadu, Sahebrao and Sarjerao were real brothers. Therefore, the trial Court passed a decree of partition and separate possession of one half share. 3. The present appellant and his brother Kantilal filed Regular Civil Suit No.176 of 1996 against the first respondent herein and others. A reference was given in the said suit to the factual contentions raised by the appellant by way of written statement in aforesaid suit for partition. The contention of the appellant in the said suit is that the partition of the year 1958 was illegal and the said Sahadu had no right to acquire any property in partition. Therefore, suit for possession was filed by the appellant and his brother for recovery of possession of the properties allegedly allotted to Sahadu in the said partition. The said suit was dismissed. There were two appeals preferred by the present appellant before the District Court. By a common judgment and order, both the said appeals have been dismissed. : 4 : 4 : 4 : 4. The submission of the learned advocate for the appellant is that the father of the first respondent was not related to said Dada in any manner. Therefore, father of the first respondent Sahadu had no right, title or interest in the ancestral property of the deceased Dada. He invited my attention to the genealogy showing the relationship between the parties. He pointed out that the said Sahadu was the son of Vithabai born from her first husband and therefore, he could not have claimed right in the ancestral properties. He submitted that the findings recorded by the courts below are perverse. 5. I have carefully considered the submissions. I have perused the impugned judgments. The courts below and in particular the Appellate Court have relied upon registered Deed of Partition dated 24th February, 1958 which is a 30 year old document. The Courts have found that in the said document, Sarejrao, Sahadu and Saibu were described as real brothers and the sons of late Dada Khomane. Reliance was placed by the appellant on the city survey extract at Exhibit 109. Reliance was also placed on evidence of a witness Bhiku Sitaram Makar whose age at the time of recording of evidence was 80 years. The Appellate Court referred to the statement made by the said witness in the cross-examination that he had no knowledge as to when and where the marriage of : 5 : 5 : 5 : Vithabai was performed. The Appellate Court found that the said witness had no knowledge about the genealogy between the parties. 6. Sarjerao, the father of the present appellant was a party to the registered Deed of Partition dated 24th February, 1958 in which the status of Sahadu was described as real brother of Sarjerao and Saibu. On the basis of the said registered document which was a 30 year old document, the courts below have discarded case made out by the appellant that the said Sahadu was a son of Vithabai born through her first husband. The said finding is correct as the father of the appellant was bound by the said Partition Deed executed by him. Consequently, the said Deed of Partition will have to be treated as legal and valid. What follows is that the suit property which is the subject matter of the suit was kept in common in respect of which the decree for partition has been passed. By accepting the 1958 partition as valid, the suit filed by the appellant and his brother has been dismissed. There are concurrent findings of fact recorded by the courts below on the basis of appreciation of evidence on record. There is no scope to interfere. Second Appeals are accordingly dismissed. 7. Civil Application No.27 of 2007 does not survive : 6 : 6 : 6 : and the same is rejected. Judge. Judge. Judge.