1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.229 OF 2008 (Panchafula w/o Sukhdeo More and another vs. Uttam s/o Sakharam Kele and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : SMT. VASANTI A. NAIK, J. DATED : DECEMBER 13, 2010 Heard Shri Gadia, learned Counsel for the appellants, and Shri Quazi, learned Counsel for respondent nos. 1 to 3. The appellants are the original defendant nos. 3 and 4. A suit was instituted by the respondent nos. 1 to 3 for partition and separate possession of the suit properties. It was the case of the plaintiffs that the properties initially belonged to one Nivrutti, who died on 8/11/1976. Nivrutti had two sons – Sakharam and Ramkisan. The plaintiffs are the legal 2 heirs of Sakharam whereas Ramkisan is arrayed as defendant no.2 and the defendant nos. 3 and 4/ appellants are the daughters of Nivrutti. It was the case of the plaintiffs that the suit properties were the joint family properties and the plaintiffs were entitled to partition and separate possession of their 1/5 th share in the suit properties. Since defendant no.1, widow of Nivrutti died during the pendency of the suit, the plaintiffs claimed additional 1/20 th share in the suit properties, which had fallen to the share of Chandrabhagabai wd/o Nivrutti. The defendant nos. 1 to 4 filed a joint written statement. They denied that the suit properties were the ancestral properties. They further denied that there was no partition of the suit properties during the life time of Nivrutti and his two sons. It was pleaded by the defendants that during the life time of Nivrutti, there was an oral partition and field Survey No. 24/3 was allotted to the share of Sakharam and the other properties were allotted to the share of Ramkisan. According to the defendants, deceased Sakharam and defendant no.2 Ramkisan 3 had relinquished their shares in some of the suit properties in favour of defendant nos. 1, 3 and 4 by a relinquishment deed dated 16/11/1976. They pleaded that the share in field properties bearing Survey No. 54/2 and 54/14 was orally relinquished by Sakharam in favour of defendant no.1 Chandrabhagabai. The defendants sought for dismissal of the suit. The trial Court and the first appellate Court, on a proper appreciation of the evidence on record, held that the plaintiffs had succeeded in proving that the suit properties were the joint Hindu family properties except field survey no.24/3. The Courts further held that the defendants failed to prove that a partition was effected between Ramkisan, Sakharam and Nivrutti during the life time of Nivrutti. The Courts held that the defendants had also failed to prove that Sakharam and Ramkisan had relinquished their share in certain suit properties in favour of defendant nos. 1, 3 and 4 and Sakharam had relinquished his share in two field properties bearing Survey No. 54/2 and 54/14, orally in favour of defendant no.1 Chandrabhagabai. The Courts 4 held that the relinquishment deed was not proved by the defendants and the said document was not exhibited. In view of the aforesaid findings, the trial and first appellate Court held that the plaintiffs were entitled to 3/8 th share in the suit properties and the defendant nos. 3 and 4/appellants were entitled to 1/8 th share in the suit properties. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the evidence on record. The Courts rightly disbelieved the case of the defendants about oral partition and oral relinquishment as well as the case based on the relinquishment deed as the same was not duly proved by the defendants. Since the findings recorded by both the Courts are pure findings of facts and since they do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE khj 5