1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 794 OF 2009 Navnath s/o Vithoba Pawar & another .. APPELLANTS VERSUS Devanganabai w/o Paraji Pawar & others .. RESPONDENTS Mr. V.D. Salunke, Advocate for the appellants. Mr. A.A. More, Advocate for the respondent nos. 1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 8 th January, 2010 PER COURT : 1 Original defendants / appellants are raising exception to the concurrent judgments recorded by the courts below. 2 Respondent / original plaintiff instituted suit claiming partition and separation of share in the ancestral property. It is contended by the plaintiff that her husband deceased Paraji was brother of defendant nos. 1 and 2 / appellants herein. Deceased Paraji was allotted portion to the extent of 84 R out of survey no. 115/A which was alienated with the consent of 2 defendants on 19-8-1998 in favour of one Mohan Mohite. So far as the other property is concerned, it is contended that the same was not put to partition. Plaintiffs claim that they have been deprived of their share out of the ancestral property and as such the plaintiffs are claiming relief in respect of partition and separation of share as well as recovery of possession of the property. Defendants have controverted the contentions raised by the plaintiffs by filing written statement. According to the defendants, husband of plaintiff no.1 and father of plaintiff no. 2 died somewhere in 1980 and since his demise the plaintiffs have left the village and are residing with brother of plaintiff no. 1. It is contended that an area allotted to the husband of plaintiff no. 1 out of survey no. 115A has been sold by plaintiffs and as such the plaintiffs are not entitled to any share in the suit property. 3 Trial court after receiving the evidence led by the parties came to the conclusion that the plaintiff has established her case as regards her entitlement to the ancestral property and as such decreed the suit thereby holding the plaintiffs entitled to have 1/3 rd share in the agricultural lands as well as house property. Defendants being aggrieved by the judgment and decree passed by the trial court presented Regular Civil Appeal no. 21/2009 which came to be heard and disposed of by the District Judge -1, Beed on 3 23-7-2009. 4 I have perused the judgments recorded by both the courts below and heard arguments advanced. The courts below have recorded finding that the defendants have not raised defence in respect of previous partition and allotment of share in favour of husband of plaintiff no. 1 and as such the contentions raised by defendants in that regard are not liable to be considered. I have perused the written statement tendered by the defendants. Defendants have not pleaded the case in respect of previous partition and have not also pleaded that the plaintiffs are not entitled to claim partition on account of there being previous partition and separation of share between the brothers interse. So far as contention raised by the defendants that plaintiff no. 1 has alienated the share allotted to her husband out of survey no. 115A is concerned, it transpires that survey no. 115A admeasures 12 acres and 23 gunthas. Deceased husband of plaintiff no. 1 as well as defendant nos. 1 and 2 were allotted share to the extent of 82 R 84 R and 82 R respectively in the said survey no. It transpires that plaintiff has alienated share which had fallen to share of her husband out of said survey no.1 Defendant nos. 1 and 2 were also allotted share in the said survey no. and it also further transpires that they have also alienated their 4 share out of survey no. 115. So far as the other agricultural properties and residential property are concerned, it transpires that plaintiff no. 1’s husband was not allotted any share and as such plaintiffs are entitled to claim a decree for partition in respect of those properties. In this view of the matter, I am of the view that the appeal does not require any consideration. No substantial question of law arises for consideration in the appeal. Appeal stands dismissed summarily. 5 In view of dismissal of appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa794.09.odt