1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 1759 OF 2005 Bainabai w/o Digambar Ghuge & others .. APPELLANTS VERSUS Digamber s/o Wamanrao Ghuge & othes .. RESPONDENTS Shri P.S. Agrawal, Advocate for the appelants. ===== CORAM : R. M. BORDE, J. DATE : 20 th July, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the concurrent findings recorded by the courts below. 2 Plaintiff nos. 1 and 2 who are the wives of defendant no. 1 and plaintiff nos. 3 and 4 who are the married daughters of plaintiff nos. 1 and 2 and defendant no. 1, have instituted the suit claiming declaration of shares and partition and separate possession of the ancestral property. In the plaint, the plaintiffs contend that there was a family arrangement between defendant no. 1 and the other defendants and as such, defendants have been put in possession of their respective shares. Plaintiffs claim that they have not been given their shares while making family arrangement nor there 2 was any partition of the property by metes and bounds. They claim that they are entitled to have separate share in the ancestral property. Defendant nos. 1 to 3 have admitted the claim raised by plaintiffs whereas defendant nos. 4 and 5 have contested the claim. Defendant nos. 4 and 5 contend that the partition in respect of the ancestral property has already taken place and the parties have been put in possession of the separate shares. 3 Trial court after recording evidence of the parties reached conclusion that the plaintiffs have failed to establish that they have any entitlement to claim partition and separate possession of the suit property. Trial court as such dismissed the suit. Findings recorded by the trial court were upheld in appeal presented by the original plaintiffs in Regular Civil Appeal no. 43/2002 decided by the Ad-hoc Additional District Judge, Hingoli on 20-8-2005. 4 I have perused the judgments recorded by both the courts below. The plaintiffs have come to the court with contention that there was a sort of family arrangement and separation of shares was effected interse between the defendants. However, the plaintiffs have not been allotted any share. Plaintiff nos. 1 and 2 are the wives of defendant no. 1. It has come in the evidence that plaintiff nos. 1 and 2 are residing under the same roof with defendant no. 1. Plaintiff no. 3 is the married daughter of plaintiff no. 1 and defendant no. 1 and her marriage is admittedly solemnised in the year 1994. Plaintiff no. 3 as such has no entitlement to claim separation of shares from the defendants. It is contended that plaintiff no. 4 was unmarried at the 3 time of institution of the suit. However, her marriage has taken place two years after institution of the suit. However, there are no pleadings raised in the plaint to that effect. Plaintiffs have neither pleaded not proved their entitlement to the ancestral property. PW 3 has admitted in her deposition before the court that partition in respect of the suit property has already been effected and the parties have been put in possession of their separate shares. In this view of the matter, considering the ocular evidence lead by the plaintiffs, trial court has rejected the case put up by plaintiffs and dismissed the suit. Findings of fact recorded by the trial court have been confirmed by the first appellate court. Considering all the relevant aspects involved in the matter, I am of the opinion that the courts below have not committed any error in reaching conclusion and rejecting the case put up by the plaintiffs. No substantial question of law arises for consideration of the appeal. Appeal is devoid of merit, hence dismissed. 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1759.05.odt