1 IN THE COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.746 OF 2006 WITH CIVIL APPLICATION NO.1127 OF 2006 Mahadu Balu Mali & Ors. .. Appellants V/s. Janibai Gangaram Mumbaikar & Ors. ..Respondents Mr.V.B.Rajure for the Appellants/Applicants. Mr.P.S.Dani for Respondent No.1. CORAM : R.M.SAVANT, J. DATED : AUGUST 11TH, 2008. P.C. This Second Appeal takes exception to the Judgment and decree dated 5th April, 2006 passed by the learned Additional District Judge, Alibag by which the suit of the Plaintiff i.e. The Respondent No.1 herein came to be decreed. 2 2. The Appellants are the original Defendants in Regular Civil Suit No.41 of 2000 filed by the Respondent No.1 Plaintiff for declaration, partition and possession of suit properties mentioned in paragraph 2,3 and 4 of the plaint. So far as paragraph 2 and 3 are concerned, the Plaintiff sought her share to the extent of 1/5th share in the said properties and in so far as paragraph 4 of the plaint is concerned, the Plaintiff sought a declaration and possession on the basis that she is the heir of the original tenant Marya. 3. In the said suit, the Defendants were all related claiming their linage to one Balu. Except Defendant Nos. 1,3 and 4, most of the Defendants i.e. Defendant Nos. 2,5,6,7,8,9,10 and 11 accepted the case of the Plaintiff as regards the property mentioned in paragraph 2, 3 and 4. In so far as 3 the Defendant Nos. 1,3 and 5 are concerned, they opposed the said suit on the ground that partition had already taken place and also on the ground that some of the properties were their self-acquired properties. It was also their case that the Plaintiff Janibai has relinquished her right by an oral relinquishment before the Tahashildar concerned, it was therefore the case of the Defendants that the Plaintiff have no right in respect of the properties which are the subject matter of the said suit. 4. The parties went to trial, the Trial Court on the basis of the findings which was before it, came to a conclusion that the properties mentioned in paragraph 2 and 3 are not the joint family properties and the property mentioned in paragraph 4 save and accept survey No.30/1 and 30/5 are not the self acquired properties of Mahadu. The Trial Court also recorded a finding that the Plaintiffs 4 had relinquished her right on account of the oral relinquishment which was permissible in the eye of law. The Trial Court therefore dismissed the said suit. 5. Aggrieved by the dismissal of the suit, the Plaintiff filed Regular Civil Appeal No.238 of 2002 in the Court of District Judge, Raigad-Alibag. The Appellant Court considering the Revenue Record and the entries effected in the tenancy register in favour of Marya, came to a conclusion that the property mentioned in paragraph 2 and 3 are the joint family properties and that the properties mentioned in paragraph 4 are the properties of Mahadu of which he is the protected tenant and the Plaintiff as an heir becomes the tenant of the property of the said Maryal. In so far as the case of the Defendants as regards the relinquishment of the Plaintiff is concerned, the Appellate Court observed that though it was the case of the 5 Defendants that the Plaintiffs had relinquished her right by an application made to the Talathi, no such evidence was produced on record. The Lower Appellate Court therefore was of the view that the Defendants case that the Plaintiff had relinquished her right could not be accepted. The Lower Appellate Court therefore decreed the suit and granted the reliefs prayed for in respect of the properties mentioned in paragraph 2,3 and 4 of the plaint as sought by the Plaintiff. 6. It is sought to be contended on behalf of the Appellant herein that in view of the fact that the Lower Appellate Court has recorded a finding that Mahadu was holding the said property as the manager of the family reference to the Tenancy Court as regards the issue of tenancy was warranted. The learned counsel for the Appellant also draw my attention to the evidence of the Plaintiffs so as to contention that it was admitted 6 by the Plaintiff that she has relinquished her right in respect of the property in question. 6. On the other hand, the learned counsel for the Plaintiff draw my attention to the averments made in the two written statements filed by the Defendants except the Defendant Nos. 1,3 and 5. Wherein the said Defendants have accepted the position as regards the status of the properties as mentioned in the paragraph 2,3 and 4 of the Plaint. The learned counsel also drew my attention to the evidence of D.W.1 wherein it has been admitted by said D.W.1 that the properties in question mentioned in paragraphs 2 and 3 are joint family properties. Further, it has come in the evidence of D.W.1 that a written complaint was made to the Talathi by the Plaintiff and thereafter an agreement was arrived at on 12th March, 1995 by which the Plaintiff had agreed to relinquish her right. In the absence of the said documents 7 produced by the said Defendants i.e. the Appellant herein, the finding recorded by the Lower Appellate Court that there was no relinquishment cannot be faulted with. 7. In my view, the challenge raised in the Second Appeal does not involve any substantial question of law. 8. The Second Appeal is, accordingly, dismissed. 9. In view of the dismissal of the Appeal, the Civil Application No.1127 of 2006 does not survive and is disposed of as such. [R.M.SAVANT, J.] 8