1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 65 OF 2004 Bhaiyya Pandurang Gadhawe Vs. Madhukar Ganpat Ghule & 9 Others Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's Orders Shri B. N. Mohta Adv for appellant. Shri R. B. Uapadhyay Adv for respondents. CORAM: .R. M. SAVANT J. Dated: 14 th FEBRUARY, 2011. This Second Appeal takes exception to the judgment and decree dated 01.10.2003 in Regular Civil Appeal No. 194 of 2000 by which the decree passed by the trial Court dated 13.11.2000 in Regular Civil Suit No. 200 of 1994 came to be confirmed. The appellant herein is the original defendant in Regular Civil Suit No. 200 of 1994 filed by the respondent no. 1 herein for declaration that the sale deed executed in respect of the suit land is illegal and for possession of the suit land admeasuring 1.05 Hectres. 2 2] The bone of contention in the above proceedings is land bearing Gat No. 227 of mouza Pipari. It was the case of the plaintiff that an oral partition had taken place between 8 brothers namely Madhukar, Raghunath, Ananda Gangaram, Haribhau, Bhaskar, Waman and Damu in respect of the ancestral property land bearing Gat No. 227 in the said oral partition had come to the share of the plaintiff and his three other brothers namely Raghunath, Anand and Gangaram. On the defendant Bhaskar executing a sale deed in favour of the appellant Bhaiyya above named in respect of the said suit property, that the plaintiff was constrained to file the Regular Civil Suit No. 200 of 1994 for declaration of the sale deed being illegal and for possession. It will have to be borne in mind that land bearing Gat No. 227 admeasured 2.73 Hectres in total. There was another ancestral land bearing S.No. 128 admeasuring 3.50 Hectres. The defendant Bhaskar filed his Written Statement in the suit and it was his case that the said Gat No. 227 had come to the share of Haribhau, Bhaskar, Waman and Damu where as land bearing Gat No. 125 had come to the share of 4 other brothers namely Madhukar, Raghunath, Ananda, Gangaram . In fact, in his deposition Bhaskar went to depose that their sister Leelabai has also a share. The trial Court on the basis of both oral and documentary evidence on record came to the conclusion that Gat No. 227 had come to the share of the 4 brothers namely Raghunath, Ananda, Gangaram and Madhukar where as Gat No. 125 had come to the share of the defendants. The trial 3 Court also recorded a finding that plaintiff Madhukar had purchased the shares of his three brothers and therefore had became owner of the entire land encompassed in the said gat number 227. The sale deeds executed by his brothers in favour of the plaintiff and his wife were exhibited and proved. The Trial Court also recorded a finding that the defendant no.1 had taken forcible possession of the suit property. Trial Court therefore issued a declaration as regards illegality of the sale deed and directed the defendant to handover the possession of the land admeasuring 1.05 Hectres in the said S. No. 227. 3] Being aggrieved by the decreeing of the said suit the purchaser from Bhaskar i.e. the appellant above named Bhaiyya filed Regular Civil Appeal No. 194 of 2000. The First Appellate Court on re-appreciation of the evidence came to a conclusion that the finding of fact recorded by the trial Court as regards the land Gat No. 227 coming to the share of the plaintiff and his three brothers could not be faulted with. The First Appellate Court confirmed the findings of the trial Court that the defendant no.1 Bhaskar and three other brothers, Waman, Haribhau and Damu had no right in respect of the Gat No. 227 and therefore sale deed executed by them in favour of the said purchaser Bhaiyya was illegal. The First Appellate Court also confirmed the finding of forcible possession by the defendant no.1. The First Appellate Court therefore confirmed the decree passed by the trial Court 4 4] It was sought to be contended by Shri Mohta, counsel for the appellant that the evidence by way of sale deed Ex. 94 and 95 in respect of Gat No. 125 and 149 executed by all the 8 brothers has not been properly appreciated. It is sought to be contended by Shri Mohta that assuming that there was oral partition, the partition was unequal as the defendant had got only 3.5 acres of land in the said Gat No. 125. In my view the said submissions do not commend to me, firstly it was the case of defendant Bhaskar himself that partition had taken place and that in the said partition land Gat No. 227 had come to him and his three brothers namely Haribhau, Waman Damu and in fact in the deposition as stated herein above he had diverged from his own case that even his sister Neelabai had a share in S. No. 227. It was never the case of the defendants based on the said two documents that the lands were held jointly and therefore sale deeds were executed jointly. In so far the contention of Shri Mohta that the partition was unequal, and therefore the theory of partition propounded by the plaintiff cannot be believed. Firstly the said case was never put up by the defendants in the Courts below, and secondly as contended by the learned counsel for the respondents herein that since there was a difference in the quality of the lands in question, Gat No. 125 being qualitatively superior to Gat No. 227 there was unequal partition. 5] Considering the findings of fact recorded by the Courts below in my view no substantial question of law arises for consideration in the 5 above Second Appeal. Second Appeal is accordingly dismissed. In view of the dismissal of the Second Appeal Civil Application No. 1016 of 2004 does not survive and stands disposed of as such. JUDGE svk 6 7 8