-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 251/2008 Mrs. Anjanabai Pandurang Kadu -versus- Mr. Dayaram Mahadeo Thakre ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 17, 2009. The plaintiffs challenged concurrent rejection of their claim for partition. The Courts below have found that there was already a partition in the family and they also found that after said partition the property was sold in the year 1962 and 1965 by two Sale deeds on which the plaintiffs have put their signatures and never challenged those sale deeds. Advocate Shri R.D. Najbhile, has contended that the story of defendants that Khoklya died in 1955 is falsified by their own witness who stated that Khoklya died in 1953. He states that partition in 1954 cannot be believed in view of this evidence, as then the partition must be presumed to have taken place after the death of Khoklya. According to him if -2- the year of death of Khoklya is found tobe incorrect, the story of partition is incorrect and Courts below therefore could not have accepted it. Shri A.S. Jaiswal, learned Counsel appearing for respondents points out that the death of Khoklya is not in dispute and the separation on account of family arrangement or partition has been brought on record through other evidence. He points out that Mahadeo, father of defendant no.1 received certain properties as a result of said arrangement and when those properties were sold, signatures of plaintiffs were obtained on said sale deeds, and when the properties which were received by the defendant no.1 Dayaram were sold no such signatures were obtained and there is no objection raised raised to any of the sales by the plaintiffs. With the assistance of both the learned counsel, I have perused both the judgments. The Courts below have concurrently found that subsequent sale deeds and mode and manner in which the sale deeds have been executed clearly established that there was a partition in the family. It is to be noted that if the plaintiffs were claiming that there was no partition, the burden was upon them to explain how they placed their signatures on 1962 and 1965 sales wherein the property received by Mahadeo -3- was sold. It was also necessary for them to explain why their signatures were not obtained when Dayaram's portion was sold and why they did not object on any of these occasions. The appreciation of evidence by both the courts below cannot be labeled as erroneous or perverse. In view of the fact that the partition itself has been established, the date of death of Khoklya is not very relevant. The witness deposing after about 40 or 50 years about such death may commit mistake of a year or two and that itself will not render the partition itself bad. I therefore, do not find any substantial question of law arising for determination in the appeal. Second Appeal is thus dismissed. No cost. JUDGE Rgd.