1 S.A.951.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 951 OF 2009 WITH CIVIL APPLICATION NO. 13468 OF 2009 1. Dattopant S/o Gangadhar Deshpande, Age 74 Years,Occup. Business, R/o Georai, Taluka : Georai, District Beed. And others ...APPELLANTS VERSUS 1. Vijaykumar S/o Gopalrao Deshpande, Since deceased through his L.Rs. And others. ...RESPONDENTS. ... Shri.Rajendra S. Deshmukh Advocate for Appellants Shri.S.V.Natu,Advocate for Respondent No.2 ... CORAM: SHRIHARI P.DAVARE, J. DATE : 1st FEBRUARY, 2011. PER COURT : 1. Heard Mr.Rajendra S. Deshmukh,learned counsel for appellants, and Mr.S.V.Natu, learned counsel for respondent No.2. 2. Unsuccessful plaintiffs, who lost before trial Court, as well as First Appellate Court, have preferred present Second Appeal challenging 2 S.A.951.09 the Judgment and order dated 17th August, 2009, rendered by District Judge-2 Beed, in Regular Civil Appeal No.109 of 2004 and also challenged the Judgment and decree dated 14th July, 2004, in Regular Civil Suit No. 225 of 1992, passed by learned Civil Judge Junior Division, Georai. 3. The parties are referred to hereinafter as per their original status as plaintiffs and defendants. 4. Plaintiffs filed Regular Civil Suit No. 225 of 1992 for partition and separate possession under the provisions of Hindu Law. 5. It is case of the plaintiffs that, the common ancestor Vitthalrao had four sons namely Gangadhar, Ramrao, Hanumatnrao and Gopalrao. The plaintiffs are sons/daughters of Gangdhar, Ramrao and Hanumantrao, whereas defendants are heirs of Gopalrao. According to the plaintiffs, suit property is Joint Hindu Family property of 3 S.A.951.09 plaintiffs and defendants, which is governed by Mitakashara school of Hindu law. The suit properties are Joint Family properties and are still joint today and no partition was effected between the plaintiffs and defendants, by metes and bounds. No partition was effected in between the father of plaintiff Nos. 1 and 2 and defendants till the death of father of plaintiff Nos.1 and 2. It is case of the plaintiffs that plaintiffs and defendants are having separate electric meters and separate water connection in the suit property. 6. It is case of the plaintiffs that one Anantrao Deshpande had filed Regular Civil Suit No.376/1/55 before Munsif Magistrate, Georai and said suit was decreed. In the said suit, father of the plaintiffs No.1 and 2, plaintiffs No. 3 and 4, father of defendants No.1 to 3 and husband of defendant No.4 were defendants. The said suit was decreed and decree was executed by Anantrao Deshpande. It was held that plaintiffs and 4 S.A.951.09 defendants are share holders in the said suit property, and hence, they had requested the father of defendant Nos. 1 to 3 and husband of defendant No.4, to effect partition of suit property, even after death of defendant Nos. 1 to 3 and husband of defendant No.4, but the defendants flatly refused to do so. Hence, plaintiff made an application before Municipal council, Georai on 14.05.1992 for recording their names to the suit property, but the Municipal Authorities did not take any step, and hence, plaintiff filed suit bearing Regular Civil Suit NO. 225 of 1992 and prayed for partition of the suit property by metes and bounds and claimed 1/4th share for plaintiff Nos. 1 to 4 and also direction for separate possession to the plaintiffs of their share. 7. Defendants filed their written statement and resisted the suit claim. It is contended by the defendants that the suit property is owned by the plaintiffs and they are not in possession thereof. 5 S.A.951.09 It is also the case of the defendants that suit property was ancestral property of the plaintiffs and same was independently given in partition to the father of plaintiffs No.1 and 2. Therefore, said suit property was the property of father of plaintiffs No.1 and 2. As per partition between father of plaintiffs No.1 and 2, plaintiffs No. 3 and 4 and father of defendant No.1 have no share in the suit property. It is also contention of the defendants that plaintiffs have no concern with the suit property. They have no undivided share in suit property. According to defendants, partition of the ancestral property between father of plaintiffs No.1 and 2, namely, Gangadhar, Plaintiffs No.3 and 4 and father of defendant No.1 has been effected in between year 1950 to 1952. According to defendants, partition of landed as well as household properties, between Gangadhar, plaintiffs No.3 and 4 and father of defendant No. 1, had been effected before 1950-1952. 8. Defendants admitted that Gangadhar had 6 S.A.951.09 executed sale deed of his share in House property No.358 on 09.08.1956. It is contention of the defendants that sale deed was not of 03 khans out of 46 khans, but of the entire share of Gangadhar in house No. 358. By such sale deed, Gangadhar sold his share in house No. 358. Plaintiffs have not challenged the sale deed in the present suit, and therefore, same is binding upon them. 9. As regards, Regular Civil Suit No. 376/1/1955, it is contended that father of the plaintiffs No.1 and 2, plaintiffs No.3 and 4 and father of defendant No.1, were the parties to that suit and said suit was decreed. Accordingly, defendants contended that there is no substance in the present suit and same be dismissed. 10. After considering the pleadings and evidence adduced and produced before the trial Court and after considering rival submissions, trial Court dismissed the suit, on 14.07.2004. Being aggrieved and dissatisfied by the said Judgment and Decree 7 S.A.951.09 plaintiffs preferred Regular Civil Appeal No.194 of 2004, but same also came to be dismissed by District Judge-2, Beed, on 17.08.2009. Hence, plaintiffs challenged both the said Judgments in present appeal. 11. It appears that after considering the pleadings, trial Court framed issues and specific issue was framed “whether plaintiffs and defendants are members of Hindu Joint family?, but the same was answered in the negative, as well as specific issue was framed “Whether the suit is within limitation?, but same was also answered in the negative and consequently next issue in respect of separate possession of plaintiffs was also answered in the negative. So also, no specific issue was framed in respect of sale deed at Exh.180, but the issue “Whether Gangadhar sold only 03 khans out of 46 Khans of house No. 358 of Georai in favour of defendant No.1?, was framed and was also answered in the negative, which consequently, resulted into dismissal of the suit 8 S.A.951.09 filed by the plaintiffs. Moreover, the Appellate Court also confirmed the findings of the trial Court and dismissed the Appeal filed by the plaintiffs herein. 12. After considering reasoning recorded by trial Court, as well as First Appellate Court, I do not find any error in respect of factual aspects and legal position. Therefore, no interference is called for in the said concurrent findings, in the present Second Appeal. Much emphasis is given by the learned counsel for the appellants in respect of sale deed Exh.180 and its translation at Exh.179, dated 09.08.1956 and he contended that 03 khans out of 46 khans were sold by Gangadhar to Gopalrao by the said sale deed. However, plain reading of Marathi version of the contents of sale deed clarifies that the entire house property No. 358 was sold by Gangadhar to Gopalrao, by way of said sale deed. Therefore, there is no question of formulation of the substantial question of law in that respect, as 9 S.A.951.09 canvassed by the learned counsel for appellants. 13. Moreover, learned counsel for appellants advanced argument on the aspect of limitation, but considering reasons given by the learned trial Court, as well as by First Appellate Court in that respect, I am of the view that there is no substance in the submission made by the learned counsel for appellants in that respect. 14. In the circumstances, no substantial question of law could be formulated, and therefore, present Appeal lacks merits, and hence same stands dismissed. Record and Proceeding be sent back to the concerned court. 15. In the light of dismissal of Appeal, nothing survives for consideration in the Civil Application and same is also disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK 10 S.A.951.09