1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.619 OF 2010 Vishram S/o Kondu Borde and others ... Appellants. Versus Housabai W/o Jagdeo Shingare and others ... Respondents. ... Mr.N.N.Chitalange, advocate for the appellants. Mr.V.C.Misal, advocate holding for Mr.R.S.Deshmukh, advocate for the Respondent Nos. 1 and 2. ... CORAM : S.V.GANGAPURWALA,J. Date : 04.10.2010. PER COURT 1. The present appeal is filed by the original defendants. The present Respondents/original plaintiffs had filed suit 2 for partition and separate possession. The same was decreed granting 1/4th share to the plaintiffs. The defendants preferred appeal. The lower appellate Court partly allowed the said appeal, wherein the shares were modified and it was held that plaintiffs are entitled to 1/12th share. The said order is assailed by the defendants in this Court. 2. Mr.Chitlange, learned counsel for the appellant vehemently contended that the Courts have not taken into consideration relinquishment made by the plaintiffs in favour of the defendants way back in 1992. It also needs to be considered that the defendants have redeemed the said property from mortgage in the year 1964. Further even the mother of the plaintiffs had executed an agreement of sale in favour of the defendants and as such the defendants could be entitled to protect his possession. According to the learned counsel, the Court have not considered this aspect. He further submitted that the defendants are in possession of the property and the plaintiffs had not claimed their 3 rights, as such the alleged right of the plaintiffs is barred by principle of ouster as per Article 110 of the Indian Limitation Act. 3. With the assistance of the learned counsels, I have gone through the judgment delivered by both the Courts. The relinquishment has to be by registered instrument. The same is not in existence. The theory of redemption of the property which is mortgaged would not tantamount to release of the shares of the plaintiffs from the said property. At the most, the defendants would be entitled for contribution of the said amount from the plaintiffs. The defendants have raised the theory of part performance of the contract they have not filed any suit for specific performance of alleged agreement of sale. As far as theory of ouster is concerned, the same has to be pleaded and proved by overtact. The same is missing. The pleading to that effect is not specific. Both the Courts have concurrently taken into consideration this aspect and have decreed the suit. The trial Court had erroneously granted more share to the 4 plaintiffs. The same has been corrected by the lower appellate Court. As relations are also not disputed, the shares which are arrived at by the lower appellate Court is legal and proper. 4. In light of the above, no substantial question of law is involved. The Second Appeal is dismissed. However, there shall be no order as to costs. 5. In view of dismissal of Second Appeal, the Civil Application does not survive and it is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa619.10 5