1 S.A. No.589.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.589 OF 2010 Karim Muktum Mujawar died through L.R.s .. APPELLANTS VERSUS Aminabee W/o Hussain Shaikh Sandi & othes ...RESPONDENTS ... Shri. K.K. Kulkarni, Advocate for the appellants Shri B.R. Sontakke Patil, Advocate for Respondent Nos. 1,2,4 & 5 ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is defendants Second Appeal. The respondent/ Original plaintiffs had filed a suit for partition and separate possession in respect of the suit property. The trial Court has decreed the suit. The defendants preferred an appeal. The appellate Court also dismissed the appeal confirming the Judgment and Decree passed by the 2 S.A. No.589.2010 trial Court. The defendant No. 2 has assailed the said Judgment in the present Second Appeal. 2. The learned Counsel for the appellant submits that the Courts below should have believed the theory of previous partition put- forth by the defendants. The Courts below erroneously disbelieved the said theory. The learned Counsel further contends that even defendant No. 1 has disposed of some part of the suit property to defendant No. 5. The sale-deed to that effect has not been set aside, in absence of the same, the decree for partition could not have been executed. 3. The learned Counsel for the respondents contend that there is absolutely no iota of evidence about the partition. The mother was the owner of the property is not a disputed fact. She had alienated 8 Acres of land, during her life time and the remaining land had alienated after her death 4. With the assistance of learned Counsel 3 S.A. No.589.2010 for the respective parties I have gone through the judgments delivered by both the Courts below. There is no evidence about the previous partition. Once it is accepted that mother of the parties was the owner and after her death the plaintiff and defendants would inherit the property, as per their share defined under the Mohamden law. The case of the defendants that the plaintiff had surrendered their rights in the said property is not established. Moreover, the ground agitated by learned Counsel for the appellants that the property is sold by defendant No. 1 to defendant No. 5, no declaration is sought in respect of the same was not agitated before the lower appellate Court also. 5. The Courts below have considered the various aspects of the matter in its proper perspective. The Second Appeal is devoid of any substantial question of law, as such is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second 4 S.A. No.589.2010 Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*