1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 308 of 2008 (Tarabai wd/o Dayaram Mate Vs. The State of Mah. & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. N.N. Motghare, Adv. For the appellant. Mr. A.D. Sonak, A.G.P. for R- 1 to 4. Mr. Amol Mardikar, Adv. For R-5 & 6. CORAM : Smt. Vasanti A. Naik, J. DATE : 1 st September, 2008 Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff for partition and separate possession of her share in the suit property. The property originally belonged to one Watu. Watu had two sons; Shripad and Kusan. The plaintiff is the daughter of Shripad. The defendant nos. 5 and 6 are the son and daugher of Kusan. According to the plaintiff, the defendant no.5 applied for a partition of the suit land in the year 1999, after measuring the land through a surveyor. The defendant no. 5 was found in possession of the Khasra No. 2 167 and 171/1 area 2.39 H.R., and the plaintiff was found to be in possession of Khasra No. 167 and 181/1 area 1.71 H.R. It was the case of the plaintiff that mutation entries were effected by declaring that there was a partition between Shripat and Kusan. In this background, the plaintiff instituted a suit for declaration and separate possession of her share in the suit land. The defendant nos. 5 and 6 denied the claim of the plaintiff. They did not dispute the genealogical tree and relationship with the plaintiffs. According to the defendants, both Kusan and Shripat were cultivating the land separately by way of a family arrangement since a number of years. After the death of Kusan, the defendant no.5 was cultivating the land which was cultivated by his father, and the plaintiff and her mother Jaibai were cultivating the land which was cultivated by deceased Shripat. The defendants admitted that their father had sold one acre of land to Shri Kayte and that sale deed was also signed by Jaibai and the plaintiff. They, however, denied that plaintiff had sold only one acre of 3 land and, therefore, pleaded that the plaintiff and her mother had sold 1.25 hectares of land and in view of this sale, according to the defendants, the share of the plaintiff was reduced. The defendants, therefore, sought for the dismissal of the suit with costs. The trial Court, on an appreciation of the evidence on record, partly decreed the suit of the plaintiff and declared that the mutation entry no. 173 was null and void and not binding on the plaintiff. The trial Court directed the defendants to partition the suit property by metes and bounds and put the plaintiff in possession of half share. In an appeal filed by the defendant nos. 5 and 6, the first appellate Court reversed the findings recorded by the trial Court to hold that there was a partition of the ancestral properties and both Shripat and Kusan were in possession of their respective shares in the suit property. The first appellate Court re-appreciated the entire evidence on record to reverse the findings recorded by the trial Court. All the material evidence was reconsidered by the first appellate Court while reversing the findings. 4 The first appellate Court observed that the evidence of the plaintiff showed that equal land was in their possession, but more than two acres of land was sold by the plaintiff and her mother to one Kantode. The first appellate Court observed that the plaintiff and the defendants did not sell the suit properties jointly and the plaintiff and her mother sold the properties which were in their possession and the defendants sold the properties which were in their possession. The Court observed that no one had objected to the sale of land by the other, obviously for the reason that they believed that the land which was in their respective possession was their exclusive property. Though the parties obtained the thumb impression of each other at the time of the execution of the sale deed, the first appellate Court held that this was so because the lands were recorded in their joint names. The first appellate Court rightly held that the separate possession and enjoyment of the ancestral properties coupled with the separate sales effected by the plaintiff and her mother on one hand, and the defendant nos. 5 and 6 5 on the other, unequivocally show that there was a partition of the ancestral properties. No fault can be found with the findings recorded by the first appellate Court as the findings are recorded after a proper appreciation of the material evidence on record. Since the findings of facts do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE RMP