1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.874 OF 2009. Karbhari Mahadu Odhekar @ Wadhekar ... Appellant. Versus Kondaji Dagadu Wadekar and others ... Respondents. ... Mr.S.P.Chapalgaonkar, advocate for the appellant. Mr.P.B.Shirsath, advocate for the REspondent Nos. 1B,1C and 2. ... CORAM : S.V.GANGAPURWALA,J. Date : 07.10.2010. PER COURT 1. This is defendant's Second Appeal. The plaintiffs had filed suit for declaration and injunction claiming that the plaintiff is the 2 owner and possessor of the suit property. The defendant is not related to the plaintiffs. The trial Court decreed the suit holding that the defendant has got no right in the suit property and the plaintiffs are the absolute owners and possessors of the same. The defendant preferred an appeal. The appellate Court dismissed the appeal confirming the judgment and decree passed by the trial Court. The defendant has assailed the said judgment in this Court. 2. Mr.S.P.Chapalgaonkar, learned counsel for the appellant contended that deceased Kondaji on his own volition had given an application with the Revenue authorities. The contents of the said application are self-eloquent, Kondaji suo- motu by said application had asked the authorities to mutate the said property in name of defendant as he has partitioned the said property in favour of defendant. According to Mr.Chapalgaonkar, the Courts have not dialected upon this aspect. The pleadings regarding fraud and misrepresentation are also scanty and they do not inspire confidence. There is no evidence 3 about fraud and misrepresentation. In such circumstances, the Court ought to have accepted the case put forth by the defendant. 3. Perusal of the pleadings and judgments delivered by both the Courts, it is manifest that the properties stood in the name of Kondaji. The Courts have held that the defendant is not related to Kondaji by any common ancestor. Even in earlier RCS No.84/1992, it was held that the defendant is in no way related to the plaintiffs. Even if it is assumed that an application was given by the plaintiff, still, that would not affect the merits of the matter. When it has come on record that the defendant is not related, he is not co-sharer nor a member of the joint family. In such circumstances, the concept of partition is not attracted. Partition can only be amongst the co-sharers. If the property by partition is given to the person who is not a co- sharer then that would tantamount to gift and the property can be transferred by way of gift only by way of registered instrument. 4 4. In light of the above, no substantial question of law is involved. As such the Second Appeal is dismissed. However, there shall be no order as to costs. 5. In view of dismissal of Second Appeal, the Civil Application does not survive and it is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa874.09