1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 163/2010 (Dashrath Nazaruji Deshmukh VERSUS Shankarrao Nazruji Deshmukh & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri V.R. Mundra, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 28, 2010 . Heard. The appellant is the original plaintiff. A suit was filed by the plaintiff against his two brothers for partition and separate possession of immovable properties comprising of an agricultural land and a plot of land with some structure thereon. The plaintiff also sought permanent injunction against the defendants restraining the defendants from making any further construction on the plot of land on which a house was standing on some part. The defendants filed the written statement and denied the claim of the plaintiff. According to the defendants, the suit field was purchased in the name of the plaintiff as well as the defendants. The defendants pleaded that the suit plot was, however, purchased in the name of their mother 2 Mainabai. According to the defendants, there was a partition of the suit property i.e. the plot of land with certain construction on 06.03.1981. It was pleaded that each of the three brothers got some share in the suit plot in pursuance of the partition. The parties were paying the taxes for their individual properties on the plot of land. It was pleaded by the defendants that the defendant no.1 had started constructing his house on the plot of land which fell to his share. The defendant sought for the dismissal of the suit. Both the Courts, on an appreciation of the evidence on record, held that the plaintiff had 1/3rd share in the agricultural land but, could not have claimed partition and separate possession of his share in the plot of land with the constructed house as the plot of land was already partitioned between the parties in the year 1981 during the lifetime of their mother Mainabai. Though the partition-deed was not registered, the Courts held that the said deed was in the nature of a family arrangement and the evidence on record clearly proved that each of the three brothers had acted upon the said arrangement since the year 1981 and were staying in their separate properties on the suit plot. Both the Courts, therefore, held that the plaintiff had proved that he had 1/3rd share in the agricultural land and granted a decree in that 3 regard. The Courts, however, rejected the claim of the plaintiff for partition of the plot of land as according to both the Courts the same was already partitioned. The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The second appeal, therefore, fails and is dismissed with no order as to costs. JUDGE APTE