( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 290 OF 2002 WITH CIVIL APPLICATION NO. 5269 OF 2002 Ganpati s/o. Tukaram Nandedkar .. Appellant Versus Laxmibai w/o. Tukaram Nandedkar and ors. .. Respondents Shri V.D. Patnoorkar, Advocate for the appellant. CORAM : P.R. BORKAR,J. DATED : 10.07.2009 P.C. :- 1. Heard Shri V.D. Patnoorkar, Advocate for the appellant. No one is present for the respondents. Original respondent Nos. 1 and 2 had filed suit for partition of the property left by Tukaram Nandedkar. Admittedly Tukaram was husband of respondent No.1, father of respondent Nos. 2 to 4 and the appellant. There is no dispute regarding relationship. The suit was resisted by present appellant on ( 2 ) the ground that Tukaram had effected partition in about 1976 and the land which was in all 6 Acres 45 Gunthas was divided among three brothers, namely, appellant and respondent Nos. 3 & 4. 2. In the first place there is nothing on record to show that respondent No.1 & 2 had relinquished their shares in the suit property. In para 13 of the judgment of the Trial Court it is stated that after death of Tukaram, mutation (Exh.60) was sanctioned and names of all parties to the suit were shown as heirs of deceased Tukaram and that mutation was not objected to by the present appellant. Respondent Nos. 3 and 4 would have got additional land by the defence taken by the present appellant, but they have not supported his case. There is finding by the First Appellate Court that present appellant failed to prove that there was oral partition by father dividing the land amongst three brothers. Even accepting that there was such partition, unless there is case of relinquishment by the present respondent Nos. 1 and 2, who were original plaintiffs, it cannot be said that they are not entitled to file suit and get their legitimate shares. The shares are properly ( 3 ) determined by the First Appellate Court and in the circumstances this Second Appeal has no merit and same deserves to be dismissed. 3. In the result, the Second Appeal is dismissed at the stage of admission. Parties to bear their own costs. 4. In view of dismissal of Second Appeal, Civil Application No. 5269 of 2002 does not survive. The Civil Application stands disposed of. [P.R. BORKAR,J.] snk/2009/JUN09/sa290.02