1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 675/2004 (Manikrao Chindhuji Dange Vs. Uttam Sheshrao Denge & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. R.M. Ahirrao, Advocate, for the appellant. Mr. S.S. Thamke, Advocate, for R-1. CORAM : Smt. Vasanti A. Naik, J. DATED : 22 nd AUGUST, 2008. Heard Shri Ahirrao for the appellant, and Shri Thamke for the respondent no.1. The appellant is the original plaintiff. A suit was filed by the plaintiff against the defendants/respondents for a declaration that he was the owner of the suit property which comprises of a Kotha and some open space. It was the case of the plaintiff that he had become the owner of the suit property along with certain other properties, in pursuance of partition deed dated 8/6/1971 executed between the plaintiff and his brother Sheshrao. The defendants were the widow and the son of deceased Sheshrao. According to the plaintiff, the defendant nos. 1 and 2 obstructed the plaintiff from entering the suit property on 5/5/1991 and hence the suit was instituted. 2 The defendants denied the claim of the plaintiff and further denied that there was a partition of the ancestral property on 8/6/1971. According to the defendants, in fact, there was a partition in the year 1965 and in pursuance of the partition deed dated 26/6/1965, the plaintiff and the defendants were enjoying their shares peacefully. The defendants, therefore, sought for the dismissal of the suit. The trial Court, on an appreciation of the evidence on record, held that the plaintiff failed to prove that there was a partition of the property on 8/6/1971 and he became the owner of the suit property in pursuance thereof. The trial Court, however, came to a conclusion that the plaintiff had proved his ownership over the suit property in pursuance of the partition deed executed in the year 1965. The suit of the plaintiff was, therefore, decreed by the trial Court. In an appeal filed by the defendants, the findings recorded by the trial Court were reversed on certain issues. The first appellate Court held that the trial Court was not justified in granting a decree in favour of the plaintiff by relying on the partition deed of the year 1965, when it was not the case of the plaintiff that he became the owner of the suit properties in pursuance of the partition effected in the year 1965. According to the 3 first appellate Court, the plaintiff had not succeeded in proving the partition of the year 1971 as the partition deed was not registered and the plaintiff had further failed to prove the partition deed by examining the attesting witnesses. The judgment passed by the appellate Court is challenged by the plaintiff in the instant appeal. I have considered the submissions made on behalf of the parties and have perused the judgments in detail. The first appellate Court was justified in holding that the trial Court could not have relied on the partition deed of the year 1965, to decree the suit of the plaintiff as, according to the plaintiff, the plaintiff became the owner of the suit property in view of the partition effected in the year 1971. The first appellate Court was justified in holding that the plaintiff had not succeeded in proving the partition of the year 1971, firstly, because the partition was not a registered document and secondly, because the plaintiff had failed to prove the partition deed in accordance with law. No fault could be found with the judgment rendered by the first appellate Court. Since the plaintiff was basing his claim over the suit properties in pursuance of the partition deed and since the partition deed was not a registered partition deed, it did not have any evidentiary value. Secondly, the 4 first appellate Court, on a proper appreciation of the material evidence on record, has held that the plaintiff has, even otherwise, not succeeded in proving the partition deed. There was no question of considering the partition deed of the year 1971 as a memorandum of partition as the plaintiff had himself pleaded in para 4 of the plaint that there was a partition of the ancestral property vide partition deed dated 8/6/1971 and as per the partition deed, the plaintiff got half share in the ancestral properties. Thus, the partition deed cannot be said to be a 'memorandum of partition' and since it was a 'partition deed', it was compulsory to register it. Since the findings of the first appellate Court are pure findings of facts, they do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP