1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.333 OF 2000 with CIVIL APPLICATION NO.3427/2000 Mohan Shripati Bhapkar, (died through his L.Rs.) 1) Natha Mohan Bhapkar and Ors. - APPELLANTS VERSUS 1) Kundlik Shripati Bhapkar and another - RESPONDENTS ***** Mr.LB Pallod, Advocate for Appellants; Mr.AN Nagargoje, Adv. h/for Mr. VJ Dixit, Sr.Counsel for Resp.No.1. ----- with SECOND APPEAL NO. 1476 OF 2004 1) Kundlik s/o Shripati Bhapkar and another - APPELLANTS VERSUS Mohan s/o Shripati Bhapkar (Since deceased through L.Rs.) 1. Natha s/o Mohan Bhapkar and Ors.- RESPONDENTS _____ Mr.AN Nagargoje, Adv. h/for Mr.VJ Dixit, Sr.Counsel for the Appellants; Mr.LB Pallod, Advocate for Resp.Nos. 1 to 5. 2 CORAM : K.U.CHANDIWAL, J. DATE : 30th March, 2010. PER COURT : 1) Heard learned Counsel for the respective parties. 2) These appeals are heard together, as they challenge the common judgment of the learned District Judge, Ahmednagar dated 3rd March, 2000, whereby Regular Civil Appeal No.608/1990 filed by Kundlik, was dismissed; and Regular Civil Appeal No.609/1990 concerning Mohan was allowed. 3) There is no controversy between the parties that Shripati had ancestral property. During his life time in 1966, he had partitioned the property in equal three shares to his sons, viz. Kundlik, Mohan and the 3rd share was retained by him. The controversy crept in as regards the agricultural land left over for enjoyment of Shripati. An application was made by Shripati 3 during his life time to the Talathi concerned on 2nd August, 1966 to effect mutation in the name of Kundlik. Such entry was accepted, being Mutation Entry No.844 (Exhibit-336), and the said entry remained in force till 1975-1976. Another application allegedly came to be filed with the Talathi by Kundlik, declaring that from the share of Shripati, indeed, Mohan was also entitled for 74 R. land and again such mutation came to be effected in favour of Mohan. Both these mutation entries were held by the learned District Judge, to be not conveying any title to either Kundlik or Mohan, and consequently, the appeal of Kundlik was dismissed which was against the Regular Civil suit No.24/1987 and Kundlik’s appeal was allowed which was against the decree in RCS No.211/1977. 4) The subsequent development in the matter is, Shripati, from whom Kundlik and Mohan are staking their claim, is no more. Under the statutory arrangement, under Hindu Succession Act, the share of Shripati will devolve in 50% to 4 Kundlik and Mohan, making them, each entitled to 74 R. in the left over area. In this scenario, the merits in both these matter do not demonstrate to formulate any substantial question of law. The record demonstrate, Mohan (Appellant in Second Appeal No.333/2000) was in possession at the material time. However, the learned District Judge found that it could not be supported to a referable title. Since the title was under cloud, the learned Judge dismissed RCS No.211/1977 filed by Mohan. This exercise, now in the changed scenario, due to death of Shripati, will not be open and available to Kundlik to be coined. 5) In the result, both the Second Appeals, with above observations, dismissed. CA dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/sa333.00