1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1464 OF 2005 Vishwanath S/o Ganpatrao Dhumal, Died, through his legal heirs 1A) Anusaya W/o Vishwanath Dhumal, Age : 60 Years, Occu. : Household, R/o Village Shedol, Tq. Nilanga, District Latur. 1B) Shantaram S/o Vishwanath Dhumal, Age : 36 Years, Occu. : Agril., R/o As above. 1C) Sow. Satyakala W/o Dilip Bhosle, Age : 33 Years, Occu. : Household, R/o Jawli, Tq. Ausa, Dist. Latur. .. .. APPELLANTS (Orig. Plaintiffs) Versus 1. Trimbak S/o Ganpatrao Dhumal, Age : 72 Years, Occu. : Agril., R/o Shedol, Tq. Nilanga, District Latur. 2. Madhav S/o Ganpatrao Dhumal, Age : 68 Years, Occu. : Agril., R/o As above. 3. Sudam S/o Ganpatrao Dhumal, Age : 63 Years, Occu. : Agril., R/o As above. 4. Gurunath S/o Ganpatrao Dhumal, Age : 58 Years, Occu. : Agril., R/o As above. 2 5. Arvind S/o Trimbak Dhumal, Age : 41 Years, Occu. : Agril., R/o As above. 6. Shahuraj S/o Shivaji Dhumal, Age : 33 Years, Occu. : Agril., R/o As above. 7. Mehata S/o Trimbak Dhumal, Age : 37 Years, Occu. : Agril., R/o As above. 8. Sou. Bharatbai W/o Madhav Dhumal, Age : 58 Years, Occu. : Agril., R/o As above. 9. Ganpat S/o Madhav Dhumal, Age : 26 Years, Occu. : Agril., R/o As above. .. .. RESPONDENTS (Orig. Defendants) Shri S. V. Chandole, Advocate h/f Shri S. S. Pawar, Advocate for the Appellants. Shri A. M. Gaddime, Advocate h/f Shri V. D. Gunale, Advocate for the Respondents No. 1 and 5 to 7. Shri V. G. Sakolkar, Advocate for the Respondents No. 2 to 5 and 8 - absent. The respondent No. 9 Served - absent. CORAM : N. D. DESHPANDE, J. DATE : 13TH NOVEMBER, 2009. ORAL JUDGMENT : 3 1. Heard Shri S. V. Chandole, the learned counsel holding for Shri S. S. Pawar, the learned counsel for the appellants and Shri A. M. Gaddime, the learned counsel for the respondents No. 1 and 5 to 7. The appellant is the original plaintiff who had filed suit for partition and separate possession for his 1/5th share in the joint family property which he has described in para No. 1 of the plaint. The said suit was bearing Regular Civil Suit No. 138/2000 filed on 19.04.2000. The suit was filed against his brother Trimbak and others. The main contesting defendant is Trimbak. Said Trimbak had filed one civil suit bearing Regular Civil Suit No. 135/2000 against the present plaintiff/appellant for perpetual injunction in respect of two pieces of land survey No. 21 and 22 i. e. gat No. 83 admeasuring 2H 23R situated at village Shedol, Tq. Nilanga, only against present plaintiff/appellant. 2. The plaintiff/appellant in para 2 of his plaint has given genealogy which is not disputed. The main contesting defendant is Trimbak. Other brothers are not contesting defendants and stated to be formal parties. The first suit bearing Regular Civil Suit No. 135/2000 was filed for perpetual injunction and the present suit bearing No. 138/2000 is for partition. Both the suits came to be decided by a common judgment on the basis of evidence recorded in both the cases. The Trial Court decreed the civil suit bearing Regular Civil Suit No. 135/2000 for perpetual injunction of the respondent/defendant and dismissed the suit of the appellant/plaintiff i. e. Regular Civil Suit No. 138/2000. 3. During the course of hearing of this appeal, it is admitted that, 4 the decree in Regular Civil Suit No. 135/2000 is confirmed in appeal and first appeal was also dismissed. Thus the finding regarding survey No. 21 and 22 about 2H 23R recorded in favour of present respondent/brother Trimbal is finally decided in his favour. 4. The original record is available for the hearing of second appeal for admission. I have gone through the judgment of the Trial Court and also of the First Appellate Court, where the concurrent findings are recorded against the appellant/plaintiff, dismissing his claim for partition by giving reasons. The plaintiff/appellant has admitted that, he is in possession of 9 Acre 22Guntha of total land of the joint family property out of 40 acres of land, which is more than his share. It is admitted in the cross examination and there is mutation entry which he explained that it was on the basis of family arrangement and not of partition. He also denied alleged oral partition of 1985 what the defendant/respondent contended in his written statement. 5. I have gone through the plaint of the appellant. He did not refer to his holding of 9 Acre 22Guntha of the land and did not explain how the mutation entry came to be recorded in his name. There is no case put up that, it was pursuant to family arrangement and not partition in the family. The plaint is silent on all material points and, therefore, there is left no question to be tried further to be called as substantial question of law, when the plaintiff has admitted everything regarding his possession and mutation entry in the evidence before the Trial Court and also same is accepted by the First Appellate Court. Merely, because there is no record like 5 partition deed in the family, no case is made out by the plaintiff asking for partition and separate possession. The plaintiff/appellant's case was heard and decided on merit before both the Courts below and as such no interference is required. The second appeal is devoid of merits as observed above and stands dismissed summarily at admission stage with no order as to costs. [ N. D. DESHPANDE, J.] bsb/Nov. 09