1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.250 OF 2009 1 Vijaybai w/o Sham Deshmukh, age: 62 years, Occ: Pensioner, R/o Barshi, District Solapur. 2 Sanjay s/o Shamsundar Deshmukh, age: 37 years, Occ: Service, R/o as above. Appellants Versus 1 Ram s/o Bhagwan Deshmukh (Dismissed as against Respondent No.1 as per Court’s order dated 17.07.2009) 2 Sumanbai w/o Ramrao Kulkarni, age: 65 years, Occ: Household, R/o Household, R/o Near City Club, Parbhani. 3 Kalindibai w/o Wasudevrao Apsingekar, age: 62 years, Occ: Household, R/o Sahyog Nagar, Beed, Tq. and District Beed. 4 Vijaybai w/o Suryakantrao Joshi, age: 60 years, Occ: Household, R/o Near Maratha Mandir Theatre, Gangakhed, District Parbhani. 5 Shalilnibai w/o Jeevanrao Kulkarni (Dismissed as against Respondent No.5 as per Court’s order dated 17.07.2009) 6 Deelip s/o Jeevanrao Hambare, age: 24 years, Occ: Agriculture, R/o Ashti, Tq.Ashti, District Beed. 2 7 Avidyabai w/o Ashok Hambarde, age: 30 years, Occ: Agriculture, R/o Ashti, Tq.Ashti, District Beed. 8 Suvarnabai w/o Deelip Hambarde, age: 19 years, Occ: Agriculture, R/o as above. 9 Ashok Jandevrao Harbare, age: 37 years, Occ: Agriculture, R/o as above. 10 Vimalbai w/o Laxman More, age: 35 years, Occ & R/o as above. 11 Ammabai w/o Maruti More, (Dismissed as against Respondent No.11 as per Court’s order dated 17.07.2009) 12 Ranjanabai w/o Santosh More, age: 30 years, Occ & R/o as above. 13 Anjali w/o Shripad Devlankar, age: 37 years, Occ: Household, R/o Bidkin, Tq.Paithan, District Aurangabad. 14 Archana d/o Shamsundar Deshmukh, (Dismissed as against Respondent No.14 as per Court’s order dated 17.07.2009). Respondents Mr.Rahul Dhase, advocate for appellants. Mr.B.A.Darak, advocate for Respondents No.2, 3 & 4. Dismissed as against Respondents No.1, 5, 11 & 14 as per Court’s order dated 17.07.2009. CORAM: R.M.BORDE, J. DATE : 18 th February, 2010. 3 P.C.: 1 This is an appeal presented by original defendants no.1 & 2 raising exception to the concurrent judgments recorded by Courts below. 2 Plaintiffs instituted suit for partition and separate possession. It is stated that plaintiff no.1 Ram and husband of defendant no.1, namely Sham, were real brothers. Sham died in the year 1980. It is claimed by plaintiffs that there is no partition of ancestral property, however, defendant no.2, son of deceased brother of plaintiff no.1, is trying to mutate his name in revenue records and trying to create hindrances in the possession of plaintiffs. It is further contended that some portion of joint family property has been alienated by defendants no.1 and 2 in favour of other defendants. Hence, plaintiffs claim that alienation made by defendants no.1 and 2 shall not bind plaintiffs to the extent of their share. 3 Defendants appeared and resisted suit claim by filing written statement. It is contended by defendants no.1 and 2 that there was oral partition in the year 1976, in which, suit properties are allotted to the share of deceased Sham and some properties are allotted to the share of plaintiff no. 1 Ram. Such of those properties, which are alienated, had fallen to the share of deceased Sham. It is further contended that in view of oral partition effected in the year 1976, suit, claiming partition and separate possession is not entertainable. 4 Considering pleadings as well as evidence led by parties, trial Court found favour with plaintiffs and decreed the suit. The unsuccessful defendants preferred an appeal being Regular Civil Appeal No.33/2006, 4 which came to be heard and disposed of by District Judge-1, Beed, who allowed the appeal partly, by judgment and decree dated 14.10.2008. 5 I have perused judgments recorded by both the Courts below and heard arguments advanced by learned Counsel appearing for respective parties. 6 Shri Rahul Dhase, learned Counsel appearing for appellants – original defendants no.1 & 2, has vehemently contended that there was previous partition in the year 1976 and as such, suit presented by plaintiffs claiming partition of ancestral properties, was not entertainable. He further contends that claim raised seeking partition of the property is also beyond prescribed period of limitation. 7 It is to be noted that Courts below have considered an importance circumstance i.e. presentation of suit by deceased Sham, husband of appellant no.1 – original defendant no.1 claiming partition of ancestral properties in the Court of Civil Judge, Junior Division, Ashti, being R.C.S. No.50/87. Due to change in pecuniary jurisdiction, trial Court returned the plaint for its proper presentation, however, deceased husband of defendant no.1 did not take steps and proceedings were not continued. The fact, however, remains that suit was presented by deceased Sham claiming partition and separate possession in the year 1987. The contention raised by appellants, in this view of the matter, that there is no previous partition, is not acceptable. Defendants in the said suit i.e. plaintiffs herein have raised a contention that Sham had surrendered his rights in the ancestral property in favour of Ram – plaintiff no.1 by accepting Rs.45,000/-. However, there does not appear to be any evidence in respect of passing of amount of Rs.45,000/- 5 or surrender of rights by deceased Sham in favour of Ram. The Court below, therefore, has rightly granted decree of partition thereby protecting rights of deceased Sham. The trial Court as well as first appellate Court have not accepted the contention raised in respect of surrender of share by deceased Sham in favour of plaintiff no.1 Ram. The Courts below, on appreciation of evidence placed on record, have reached the conclusion that there was no previous partition and as such, plaintiffs are entitled to seek decree of partition and separate possession of ancestral properties. 8 That, so far as contention raised by defendants – appellants herein in respect of suit, being barred by limitation is concerned, there is no case made out in respect of previous partition or ouster of plaintiffs from the share in joint family property. In the absence of such evidence, contention raised objecting suit on the ground of limitation has no substance. No substantial question of law arises for consideration in the appeal. 9 Appeal, therefore, stands dismissed. Civil Application does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa25009