1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.621 OF 2004. 1) Kesharbai w/o Maruti Doiphode and others. - APPELLANTS (orig.Defts.) VERSUS 1) Gangadhar s/o Appasaheb Bhand and others. - RESPONDENTS ***** Mr.AG Dalal, Advocate h/for Mr.VD Salunke, Adv. for Appellants; Mr.Nikhil S.Jaju, Advocate h/for Mr. AS Bajaj, Advocate for Resp.Nos.1, 2, 4 to 8. ----- CORAM : K.U.CHANDIWAL, J. DATE : 12th April, 2010. PER COURT : 1) Heard. 2) The aggrieved plaintiff by the judgment and decree in RCA No.27/2000 recorded by the Additional District Judge, at Aurangabad, reversing the Judgment in RCS No.239/1988, is in the Second Appeal. 2 3) Mr.Dalal submits that a substantial question of law in the matter is, - In the absence of there being any document of partition, whether the first Appellate Court was justified in accepting the same? 4) Though heart-touching submissions are advanced by Mr.Dalal, however, ground realities, as surfaced in the matter, cannot be foreclosed. The factual matrix, not in controversy, is, Dada and Appa are two brothers, sons of Kisan Bhand. They own agricultural property Gut No.172 (Survey No.83), admeasuring 12 acres 23 gunthas and Gut No.278 (Survey No.121) admeasuring 20 acres and 16 gunthas, situate at village Wadaji. Dada died leaving behind him widow Anandibai and three daughters - Kesharbai (plaintiff and appellant in the Second Appeal); Gajrabai (Defendant no.9) and Malanbai (original defendant no.10). The respondents here are the legal representatives of deceased Appa from another branch. During the Scheme of consolidation, Anandibai was shown as an occupant of land admeasuring 4 acres and 13 gunthas, being Gut no.278 from survey 121, while Appa was shown to be owner and in possession of Gut No.277 to the extent of 16 acres and 3 gunthas. The questionable facts are, according to Kesharbai, after death of her father - Dada, her mother Anandibai and Appa got 8 Anna share in 3 both the fields. But Appa, in collusion with Talathi and taking advantage of Anandibai's belief, got recorded only 4 acres and 13 gunthas land in the name of Anandibai and 16 acres and 3 gunthas in favour of said Appa, vide Mutation entry no.254. She has also objected to the mutation entry Nos.24, 99 and 297 in the name of her sister Gajarabai and Malanbai and ultimately Kesharbai claimed that she is entitled to get 2.7 acres of land out of field Gut No.172 and 5.23 acres of land from Gut No.278 (old Survey No. 121). However, she is shown as owner of 60 R. land whereas her sister Malanbai is shown owner of 0.59 R. from Gut No.278. She has consequently sought for cancellation of mutation entry nos.24, 99, 227 and 254 to be null and void and sought partition of her 1/3rd share in 1/2 share of her mother with her two sisters Gajrabai and Malanbai. 5) As against this, it is more than clear, that there were sale-deeds dated 27.7.1988 (Exhibit-85) executed by Gajrabai in favour of Aashabai. Another sale-deed dated 12.5.1980 was executed by Gajarabai in favour of Subhadrabai in respect of part of field Gut No.172. These sale- deeds are proved by Sheshrao, an attesting witness. This has been supported by Sahadeo, defendant no.3. It is a matter of record, that 4 the above referred sale-deeds were acted upon. Plaintiff Kesharbai did not object at any time, she did not object to mutation in her name, vide Mutation entry No.254. She has simply added her sister Gajarabai and Malanbai in the present proceedings. It is pertinent, Kesharbai suppressed the fact that her sister Gajarabai and Malanbai sold the respective shares by the above referred sale-deeds to the third party. Such stand taken by Kesharbai certainly is suppression of facts, which does not allow to entertain such pleadings. It was pointed by Murlidhar, defendant no.1, that Kesharbai (plaintiff) has exchanged her share in field Gut No.172 as against her share in field Gut No.278 with Gajrabai, supported by Mutation entry No.254 (Exhibit-104), certified on 17.12.1984. These facts, if indeed are contrary to the record, nobody stopped the plaintiff - Kesharbai to indicate as to how the Mutation entry No. 254 came to be recorded. However, plaintiff Kesharbai did not step into explain the situation. Resultantly, the learned first Appellate Court had to accept and act upon the available evidence and naturally. The sale-deeds referred above, including the Mutation entries, the conduct of Kesharbai speaks volumes against her. 5 6) In the situation, want of a document for partition by itself will not indicate that there was no partition by metes and bounds or that Kesharbai did not get her share in the property left over by her mother Anandibai. In the result, Second Appeal is sans merit, it is dismissed with no order as to costs. (K.U.CHANDIWAL) JUDGE bdv/sa621.04