1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 230 /2009 1. MANOHAR DHONDU WALKE MADHELI, WARORA .. Petitioner/s VERSUS 1. KHUSHALDAS VITTHAL WALKE & 5 ORS. . MADHELI, WARORA 2. SMT. SAKHUBAI DHARAMCHAND WALKE MADHELI, WARORA 3. SUNIL DHARAMCHAND WALKE MADHELI, WARORA 4. ANIL DHARAMCHAND WALKE MADHELI, WARORA 5. BABY @ LEENA SHANKAR BHAGAT KHAIR, MAREGAON 6. SHANTABAI SUKHDEO TELANG VIJASON, BHADRAWATI .. Respondent/s - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Anup Dhore & Ms. Kirti Satpute, counsel for the appellant. Shri M.P. Khajanchi, counsel for the R-1 to 6. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 7, 2009. Heard the leaned counsel for the parties. The appellant is the original defendant no.1. The 2 suit property comprises of 7.26 Hectcres of land. One Dhondu was the owner of the suit property. Dhondu had three sons viz. Vitthal, Dharamchand and Manohar. Plaintiff no.1 is the son of Vitthal. Plaintiff nos.2 to 5 are the legal heirs of Dharamchand. Manohar, the third son of Dhondu. is defendant no.1 himself. A suit was filed by the plaintiffs in the year 1996 for partition and separate possession of their shares in the suit property. It was the case of the plaintiffs that there was no partition till the year 1996 by metes and bounds and, hence, the plaintiffs had asked for their share in the suit property. The appellant-original defendant no.1 filed his written statement and denied the claim of the plaintiffs. A plea was raised by the defendant no.1 in his written statement that two hectares of land falling in Field Survey Nos.24 and 25 was sold by the defendant no.1 for discharging the family debt and, hence, this land may be excluded from being partitioned. It was also the case of the defendant no.1 that he had purchased two acres of land from plaintiff nos.2 to 5 by a registered sale-deed in the year 1982. According to the defendant no.1, that was his separate property and could not have been partitioned. 3 The trial Court, on an appreciation of the evidence on record, decreed the suit of the plaintiffs and held that the plaintiff no.1 was entitled to 1/3rd share in the suit property, the plaintiff nos.2 to 5 were together entitled to 1/3rd share of the suit property and defendant no.1 was also entitled to 1/3 share in the suit property. The trial Court, however, found that the defendant no.1 was required to sell two hectares of land for discharging the family debt and, hence, this land was liable to be excluded from partition. The trial Court further held that the two acres of land purchased by the defendant no.1 from the plaintiff nos.2 to 5 was the separate property of the defendant no.1. The appellant-defendant no.1 had not filed any appeal against the judgment and decree passed by the trial Court. The plaintiffs, however, preferred an appeal before the first appellate Court challenging the findings of the trial Court holding that the two hectares of land was sold by defendant no.1 for discharge of family debt and the two acres of land purchased by the defendant no.1 was his separate property. The first appellate Court, by the judgment dated 07.07.2007, partly allowed the appeal filed by the plaintiffs. The first appellate Court held that the defendant no.1 had no authority to sell the two hectares of land for discharge of 4 family debt. The finding recorded by the trial Court that two hectares of land was sold by the defendant no.1 for discharge of family debt and, hence, the said land was liable to be excluded from the partition, was set aside by the first appellate court. The first appellate Court, however, confirmed the finding of the trial Court that two acres of land purchased by the defendant no.1 from the plaintiff nos.2 to 5 in 1982 was his separate property. The plaintiffs had not filed any appeal against that finding. The defendant no.1 has, however, filed this appeal against the finding of the first appellate Court that the defendant no.1 was not a Karta of the joint family and, therefore, had no authority to sell the two hectares of land. I have perused both the judgments in detail. On hearing the learned counsel for the parties and on perusal of the judgments, it is clear that the first appellate Court committed no mistake in holding that the defendant no.1 was not the Karta of the family and had no authority to sell the two hectares of land for discharge of family debt. The finding recorded by the first appellate Court in this regard is a pure finding of fact based on a proper appreciation of the material evidence on record. It does not give rise to any substantial question of law. 5 Hence, the second appeal is dismissed with no order as to costs. JUDGE APTE