1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.554 OF 2006 DAULAT S/O MAROTI TOPLE & 4 OTHERS VS HIMMAT S/O WAMAN TOPLE & 4 OTHERS. ______________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri C. A. Joshi, Advocate for appellant. Shri B. N. Mohta, Advocate for the respondent no.1. CORAM : R.M. SAVANT, J. DATE : 4TH MARCH, 2011. 1. The above Second Appeal takes exception to the judgment and decree dated 16-3-2006, passed in Regular Civil Appeal No.63 of 2000 by which the decree passed by the trial Court in Regular Civil Suit No.12 of 1990 dated 10-3-2000 came to be set aside. 2. The dispute, in question, is as regard the share in the property of one Narayan. The said Narayan was residing with his sons Sitaram and Mahadeo. By family arrangement, the property, in question, was divided in three parts which were thereafter occupied by the three persons separately. It appears that the sons of Narayan namely Sitaram and Mahadeo sold of their 1/3 rd share to the father of the appellant above named one Maroti. 2 Thereafter, one of the sons of said Narayan namely Mahadeo sold of the share belonging to Narayan to Maroti. Narayan thereafter sold his share to Himmat, which has resulted in filing of the Regular Civil Suit No.12 of 1990 by Maroti Chandrabhan Tople for declaration, possession and partition. The said suit was decreed mainly on the basis of the case of the plaintiff that there was an oral partition between Narayan and his sons namely Sitaram and Mahadeo and in the said partition, the said Narayan had relinquished his share in favour of Mahadeo and Sitaram. 3. Aggrieved by the decree passed by the Trial Court, the defendant no.1 i.e. Himmat Waman Tople to the said suit filed a Regular Civil Appeal No.63 of 2000. The First Appellate Court has taken into consideration the fact that there was a family arrangement by virtue of which Narayan and his two sons started staying separately. The First Appellate Court also recorded a finding that in view of the fact that the relinquishment deed was not a registered deed, there could not have been any relinquishment and merely because Narayan has not challenged the sale deed executed by his two sons, cannot be a factor to be taken into consideration in support of 3 the theory of relinquishment. The first Appellate Court also rejected the case of the defendant no.1 that Narayan was allowed to stay as a licencees. Considering the undisputed position that the relinquishment has not been evidenced by any document, in my view, the finding recorded by the First Appellate Court that there was no relinquishment by Narayan could not be faulted with. The reliance placed by the learned Counsel for the appellant on the judgment of the learned Single Judge of this Court, reported in 1964 Mh.L.J. 736 in the matter of Ramdas Chima VS. Pralhad Deorao, in my view is misplaced, in the facts and circumstances of the present case, as the question in the said case was as to whether the oral relinquishment even if proved would not divest Bainabai of her interest in the joint family property. 5. In the light of the findings of fact recorded by the First Appellate Court as regard the aspect of relinquishment by Narayan, in my view, the above appeal does not raise any substantial question of law which is accordingly dismissed. Judge //mule//