1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 185 of 2002 (Manohar Sampatrao Naik Vs. Smt. Savitaben Natthubhai Patel & ors.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. V.M. Deshpande, Adv. for the appellant. Mr. A. A. De, Adv. for the respondent No.1. CORAM : Smt. Vasanti A. Naik, J. DATE : 11 th September, 2007 Heard Shri Deshpande, for the appellant, and Shri Apurva De for the respondent no.1. The appellant is the original plaintiff. The respondent no.1 is the original defendant no.1. A suit was filed by the plaintiff against the defendants for a declaration that the sale deed executed by defendant no.2- Jayant in favour of the defendant no.1/present respondent no.1, is null and void and not binding on the plaintiff. It is worthwhile to mention that the plaintiff is the brother of defendant no.2- Jayant and defendant no.3-Madhukar. It is the case of the plaintiff that the defendant no.2- Jayant sold the property to the defendant no.1 by a registered sale deed dated 17/10/1989. It was the case of the plaintiff that the father of the plaintiff and the defendant nos. 2 & 3, died in the year 1969, and their mother died in the year 1970. According 2 to the plaintiff, after the death of their parents, there was no partition of the family properties and, therefore, the defendant no.2 had no right to alienate the suit property in favour of the defendant no.1 by the sale deed dated 17/10/1989. The defendants resisted the suit of the plaintiff and pleaded that the suit property was already partitioned between the parties and a Kararnama was executed by the three brothers on 8/10/1972. Since the properties were partitioned between the plaintiff and the defendant nos. 2 and 3, prior to the execution of the sale deed dated 17/10/1989, the defendant no.2 had a right and title to the suit property and the title was rightly passed to the defendant no.1 by the sale deed dated 17/10/1989. The defendants, therefore, prayed for the dismissal of the suit. Both the Courts, on an appreciation of the material evidence on record, held that the sale deed executed by the defendant no.2 in favour of the defendant no.1 on 17/10/1989, was valid. The Courts further held that the properties were already partitioned between the plaintiff and the defendant nos. 2 and 3, and the Kararnama was effected after the partition was made on 8/10/1972. Both the Courts, therefore, refused to grant declaration that the sale deed executed by the defendant no.2 in favour of the defendant no.1 was void and not 3 binding on the plaintiff. Shri V.M. Deshpande, the learned counsel for the appellant, submitted that the document dated 8/10/1972 was a Kararnama and not a partition deed and even assuming that it was a partition deed, the Courts ought not have placed reliance on the document as it was not a registered document. He, therefore, sought for the admission of the second appeal. Shri Apurva De, the learned counsel for the respondent no.1, on the other hand, supported the judgment passed by both the Courts and submitted that the Courts have rightly held that the sale deed executed by the defendant no.2 in favour of the present respondent no.1 was valid one and Kararnama dated 8/10/1972 reflected that the properties were already partitioned between the brothers and each of the brothers was separately enjoying the possession of their respective shares in the property. Since Kararnama dated 8/10/1972 was in the nature of the family arrangement and was not a partition deed, it was not necessary to register the Kararnama dated 8/10/1972. The submissions made on behalf of the appellant are not acceptable for the reason that the Kararnama dated 8/10/1972, in fact, shows the property which falls to the share of each brother. The Kararnama refers to the properties which were 4 in possession of the plaintiff and the defendant nos. 2 and 3. The Kararnama was not in the nature of the agreement for recovery of rent, as was tried to be canvassed on behalf of the appellant. The Kararnama, however, cannot be considered to be a partition deed as the Kararnama merely records that the parties were in possession of the properties which fell to their respective share, even prior to the execution of the Kararnama in 1972. Since the Kararnama merely recorded about the properties which fell to the share of the plaintiff and the defendant nos. 2 and 3, the Kararnama could not have been discarded merely for the reason that it was not registered. The findings recorded by both the Courts are based on a proper appreciation of material evidence on record and they do not give rise to any substantial question of law. Since no substantial question of law arises, second appeal is dismissed with no order as to costs. JUDGE RMP