1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 559 OF 2006 Radhoji s/o Bhojaji Kamble .. APPELLANT VERSUS Sambhaji s/o Bhoiji Kamble & others .. RESPONDENTS Smt. M.A. Kulkarni, Advocate for the appellant. Shri P.R. Katneshwarkar, Advocate for respondent nos. 1, 3 to 7. ===== CORAM : R. M. BORDE, J. DATE : 20th July, 2009. PER COURT : 1 Original plaintiff is raising exception to the concurrent findings recorded by the courts below. 2 Plaintiff instituted the suit claiming partition and separate possession of the landed properties bearing gat nos. 4, 5 and 330. One Bhojaji had five sons by name Sambhaji, Limbaji, Waman, Kishan and Raghoji / plaintiff. Defendant nos. 1 to 3 are the brothers of plaintiff whereas defendant nos. 4 to 7 are his nephews, sons of deceased Wamanrao. Plaintiff claims that the property in dispute is belonging to the family and he has got 1/4 th share in the property. Defendants have denied his entitlement to the share and as such, plaintiff is constrained to approach the civil court. Defendants have controverted the contentions raised by plaintiff. According to them, there 2 was no joint family property belonging to the family consisting of five brothers. All the brothers were separate in mess as well as were in cultivation of the tenanted property separately. There was no tenancy created by the joint family in respect of the suit property. Plaintiff as such has no entitlement to claim his share. It is contended by defendants that gat no. 4 was purchased out of the income derived from the family members and as such, other members have entitlement in respect of the said property. Contention of the plaintiff that he is exclusively in possession over the land gat no. 4 and the said property belongs to him exclusively has been controverted by the defendants. Defendants as such prayed for dismissal of the suit. 3 Trial court after recording evidence of the property came to the conclusion that the land gat no. 4 is available for partition and as such awarded 1/4 th share in the said property to the plaintiff. Claim raised by plaintiff in respect of his 1/4 th share in land gat nos. 5 and 330 is rejected by the trial court. Judgment and decree passed by the trial court is confirmed by the first appellate court in appeal presented at the instance of original plaintiff being Regular Civil Appeal no. 59/1998. 4 I have perused the judgments recorded by both the courts below. Plaintiff has admitted in his evidence that the land gat no. 4 is purchased in the name of one Chandu and Uttam, sons of deceased Wamanrao. He has also admitted that Waman was tenant of gat no. 330. He has also admitted that land gat no. 5 belongs to Limbaji and area to the extent of 22 acres out of gat no. 4 was possessed by Kishan, deceased brother of plaintiff. Trial court as such reached conclusion that that land possessed by Kishan to the 3 extent of 22 acres out of gat no. 4 is available for partition and as such, awarded 1/4 th share to the plaintiff. There does not appear to be any error in conclusion reached by the trial court. It has been urged by learned counsel appearing for the appellant / original plaintiff that respondent no. 2 Limbaji died during the pendency of Regular Civil Appeal no. 59/1998 and his legal heirs were not brought on record. According to the learned counsel for the appellant, effect of death of Limbaji would be that the appeal shall stand abated. Considering the facts and circumstances of the case, even on account of death of Limbaji, there would not be any variation in the shares allottable to the respective parties. Appeal was presented by the plaintiff himself / appellant herein and even assuming that the appeal got abated as against resondent no. 2 still plaintiff is not likely to secure any benefit. So far as the instant second appeal is concerned, it does not raise any substantial question of law. Arguments advanced are in respect of factual matters. Appeal is devoid of substance, hence stands rejected. 5. In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa559.06.odt