1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Second Appeal No.1695 of 2005 With Civil Application No.11927 of 2005. Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Shri P.R.Katneshwarkar, Advocate, for the appellant. Shri S.I. Nandode, Advocate, for Respondent Nos. 1 to 5. 1. This is an appeal by original defendant being aggrieved by the decree passed by III Adhoc Additional District Judge, Dhule in Regular Civil Appeal No.47 of 2003 decided on 29.8.2005, whereby original suit i.e. Regular Civil Suit No.240 of 1993 for possession of suit house property and agricultural land was decreed and the order was passed for enquiry into 2 mesne profit under Order 20 Rule 12 of the Code of Civil Procedure 1908. 2. Joint Civil Judge, Senior Division, Dhule, had dismissed the said suit on 31.2.2002. The trial court has held that there was no partition and the present appellant could not have sold suit house property to defendant by sale deed dated 23.8.1981. The trial court, however, held that there was no partition, appellant-defendant was free only to sell his undivided share in the suit property. 3. The first appellate accepted the theory of Respondent-plaintiff that there was partition and that the suit house was allotted to present appellant-defendant and he had right to sell the same. In paragraph 9 of the judgment of the trial court while discussing issues No. 1 and 2, there is a reference that it was the contention of the defendant-appellant that there was family arrangement as 3 plaintiff's brother Murlidhar was raising quarrels on the ground of shares in the properties. In law, such family arrangement is good transaction and courts rely on it. Family arrangement need not be in writing. When the defendant-appellant states that there was family arrangement, theory that suit house was allotted to appellant-defendant should not have been rejected by the trial court. Moreover, in the sale deed itself it is mentioned that there was partition and that said house was allotted to present appellant-defendant. I may refer to paragraph 12 of the judgment of the appellate court to that effect. 4. It is the case of the appellant- defendant that he executed a sham sale deed in order to defeat the maintenance claim of his wife. But, such transfer would have been necessary only in case suit house had been exclusively belonging to defendant-appellant. If it was joint family property and plaintiff had 4 share therein, in that case his undivided share could have been attached in maintenance proceedings. 5. After going through the judgment of the trial court and that of appellate court, I am not satisfied that the judgment of the first appellate court suffers any perversity, nor I am satisfied that there is any substantial question of law. Hence, second appeal dismissed at the admission stage. 6. Civil Application No.11927 of 2005 does not survive, in view of dismissal of the second appeal. Date:29.06.2009 (P.R.BORKAR, J.) pnd/sa1695.05 5