1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 562 OF 2007 Vijaykumar s/o Narayan Mishra & another APPELLANTS VERSUS Vishwanath s/o Maruti Dhole (deceased through LRs) & others RESPONDENTS Smt. Anjali Bajpai, advocate for the appellants. Smt. A.N. Ansari, advocate for Respondent no.2. ===== CORAM: R.M.BORDE, J. DATE : 30th July, 2009. PER COURT: 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit bearing Regular Civil Suit no. 482/1989 claiming partition and separate possession of 1/3 rd share out of the property bearing survey no. 85/B admeasuring 4 acres and 15 gunthas. According to plaintiff, the property was purchased by the plaintiff and defendants together by getting executed the registered sale-deed on 22-2-1983. Plaintiff as well as defendants were entitled to have 1/3 rd share each in the property acquired by them. It is contended that the defendants have denied the plaintiff his share and as such he was 2 constrained to file the suit. Defendants appeared and contended that there was relinquishment of share by plaintiff and defendant no. 2 in favour of defendant no. 1 for consideration of Rs.15,000/- and as such, it is contended that defendant no. 1 alone is entitled to retain the property. 3 Trial court after recording evidence lead by the parties came to the conclusion that the plaintiff has established his case. Trial court as such granted decree in favour of the plaintiff as prayed for. Defendants raised exception to the judgment and decree passed by the trial court by presenting Regular Civil Appeal no. 126/1996 which came to be heard and disposed of by the Jt. District Judge, Latur who was pleased to dismiss the same by judgment and decree dt. 18-8-2001. 4 I have perused the judgments recorded by the courts below. Although defendant no. 1 contends that there was relinquishment of respective share by plaintiff as well as defendant no. 2, however, there is no registered instrument executed in respect of the relinquishment. Any immovable property of value of more than Rs.100/- shall be transferred only by way of registered instrument and no other mode is permissible for transfer of such property and, even if, such transfer is effected, the same cannot be taken cognizance of. In the instant matter, as the share held by plaintiff as well as defendant no. 2 is alleged to have been relinquished in favour of defendant no. 1, there is no registered instrument in respect of such transfer entered into between the parties. The courts below therefore were justified in refusing to take cognizance of the defence raised by defendant in respect of relinquishment of share by plaintiff and defendant no. 2. No substantial question of law arises for consideration of 3 the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( R.M.BORDE, J.) ******* dyb/office/sa562.07.odt