1 SA.277/2003 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 277 OF 2003 Sou. Phulvati Tulsiram Indalkar & Ors. ..Appellants. Vs. Ganpat Rau Indalkar & Ors. ...Respondents. ..... Mr. Uday Warunjikar, for the Appellants. None for the Respondents. .... CORAM: S.C. DHARMADHIKARI, J. DATE : 20th JULY, 2010. P.C. 1] Heard Shri Warunjikar, learned counsel appearing on behalf of the Appellants. 2] According to Shri Warunjikar the only substantial question of law that arises for determination of this Court in the present Second Appeal is that whether suit as filed viz. for declaration of title and permanent injunction was maintainable. In his submission, the Plaintiffs-purchasers without seeking any relief of partition of the property could not have maintained this suit. 2 SA.277/2003 Further, the deceased Atmaram through whom the original Plaintiffs are claiming had sold undivided portion of a joint family property and therefore unless the relief of partition is claimed the original Plaintiffs who had derived title from the deceased Atmaram could not have sought any permanent injunction. Section 34 of the Specific Relief Act, 1963 would be a clear bar in doing so, according to Shri Warunjikar. 3] I am unable to accept this contention. 4] The suit was filed for declaration of title by Respondent No.1- Plaintiff and perpetual injunction in respect of a land being block No.12 to the extent of 10 Ars from northen side and a house bearing Grampanchyat property No.114 to the extent of 1/6th share situated at Kalambe taluka, District-Satara. 5] Respondent No.1-Plaintiff came with a clear case that prior to 1981 there was a partition in respect of the land and house property left by the father deceased Rau. The partition was between Respondent No.1- Plaintiff and his two brothers viz. Laxman and deceased Atmaram, the father 3 SA.277/2003 of original Defendant No.1. In that partition the northern 1/3rd portion of the suit land and the suit house along with other properties were allotted to the share of deceased Atmaram. 6] The original Defendant Nos.1 and 2 were not looking after Atmaram in his old age and therefore, he had to look after himself. Atmaram was suffering from Asthma. He was indebted on account of his illness and therefore requested the Respondent No.1 original Plaintiff that the suit property be purchased and that is how the transaction was finalised and the registered sale deed dated 2.12.1987 came to be executed. Respondent No.1- Plaintiff was put in possession as owner thereof. Soon thereafter on 2.6.1990 Atmaram expired. The Appellants-original Defendant Nos.1 to 4 started obstructing and causing interference with the peaceful possession of the first Respondent which led to the institution of the suit. 7] It was the defence of the Appellants that there was no partition between their predecessor-in-title, deceased Atmaram and brothers of Atmaram. One of the brother of the deceased Atmaram was the first Respondent-Plaintiff. 4 SA.277/2003 8] In such circumstances, according to the Defendants the sale deed does not any valid title. 9] The plea as raised before me by Shri Warunjikar was raised before the Trial Court as also the Lower Appellate Court. The Lower Appellate Court has relied upon the mutation entries (Exhibit-64) which were prior to year 1981 which demonstrate a Partition in respect of the properties. The Partition is between the deceased Rau, Respondent No.1- Plaintiff, original Defendant No.5 and the deceased Atmaram. This document together with the subsequent mutation entries amply demonstrates the factum of partition. Therefore, the objection raised that there is no oral evidence as far as the partition is concerned, in these peculiar facts, does not carry any weightage. The Lower Appellate Court in my view rightly relied upon the Documentary Evidence such as Mutation entries and concluded that right from 1981 there was severance of status between the original Plaintiff, Defendant No.5 and the deceased Atmaram. Therefore, overlooking and discarding such documentary evidence was not permissible. These are findings recorded on the basis of the documentary evidence placed before the Courts below. To my mind, accepting Shri Warunjikar’s argument 5 SA.277/2003 would be undertaking the task of reappreciation and reappraisal of the evidence. In addition, the Trial Court in its Judgment at paragraphs 22 and 23 has referred to the oral evidence of Respondent No.1-Plaintiff and it held that despite raising the defence as above, and the plea of the maintainability of the suit, the original Defendant No.2 did not entered the witness box nor the clear assertions on oath by the first Respondent-Plaintiff that Atmaram was actually possessing and cultivating the land individually, have been falsified in the cross examination. 10] In these circumstances, there is no substantial question of law in this second Appeal. It does not require any admission, and is accordingly dismissed. S.C. DHARMADHIKARI, J.