1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 8 OF 2009 (Aashik Baig Habib Baig vs. Raheman Baig Habib Baig & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 16, 2009. Heard Shri Parchure, learned counsel for the appellant and Shri Mardikar, learned counsel for respondents No. 2 to 5. The appeal is by the original plaintiff and challenges the concurrent rejection of his claim of partition and separate possession. The learned counsel has stated that the property was already partitioned between the parties on 20.10.1985 and one of the beneficiaries by name Sardar Baig expired thereafter. The suit was filed only to claim partition of portion which had fallen to Sardar Baig and Rabiyabi, Sister of Sardar Baig in 1985 partition. It is further contended that non production of 1985 partition was, therefore, not very relevant insofar as controversy is concerned. It is contended that respondents No. 2, 3 & 4 who were parties to the partition and beneficiaries thereof did not enter 2 witness box and therefore the appellant was denied opportunity of cross examining them and hence adverse inference ought to be drawn against Respondents No. 2, 3 & 4. Shri Mardikar, learned counsel, on the other hand, states that the appellant approached the trial Court and burden was upon him to prove that there was partition in 1985. He states that 1985 partition is alleged to be a document in writing and it was not produced. He further states that the evidence of separation in pursuance of alleged partition has also not been brought on record. According to him, therefore, no substantial question of law arises in the matter. With the assistance of both learned counsel, I have perused the impugned judgments. The trial Court had framed issue to find out whether there was partition in the year 1985 and whether in that partition suit property was allotted to the deceased Sardar Baig. The trial Court has answered both these issues in the negative. It has found that alleged 1985 partition document was not produced and therefore Section 91 of Evidence Act did not permit oral evidence in relation to its contents. It is to be noticed that the evidence showing the severance of status or their possession of separate 3 portions as per said partition has also not been brought on record by the appellant – plaintiff. The lower appellate Court has also considered the controversy and found that 1985 partition has not been produced at all. In the circumstances, I do not find any substantial question of law arising in this Second Appeal. The same is, therefore, dismissed. JUDGE *GS.