1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL NO.1700 OF 2008 WITH CIVIL APPLICATION NO.1115 OF 2008 1. Bhairappa Chandram Sagare & Ors. ...Appellants. v. 1. Kumari Seema d/o. Basavraj Sagare & Ors ...Respondents. Mr. M.A.Utagikar, adv. For the Appellants. Mr. P.B.Shah i/by Ashok B. Tajane, advs. For the Respondent Nos. 1 to 3. Mr.R.S.Alange, adv. for the Respondent Nos.4 to 6. CORAM : J.H. BHATIA, J. DATED : 27th July , 2009 P.C. 1 Heard the learned counsel for the Parties. 2 Admittedly, one Chandram Sagare died in 1987 leaving behind his widow Parvatibai, who is the original defendant no.7and the appellant no.4 in this appeal, and four daughters namely, Kamala plaintiff no.3, Mahananda defendant no.2, Mahadevi defendant no.4 and defendant no.5 Chanbassavva and four sons namely, Bhairappa defendant no.1, Hanumant defendant no.3, Rajkumar defendant no.6, deceased Basavraj defendant no.6. Basavraj died leaving behind his wife, Sangita and Seema, daughters plaintiff no.2 and plaintiff no.1 2 respectively. Plaintiffs filed special suit no.457 of 1999 for partition and separate possession. Defendants contested the suit. Main contention of the defendant was that property was already partitioned in 1978 and the parties were in separate possession since then. However, no evidence was led by the defendants to prove the partition. In view of this the trial Court, taking into consideration the amendment in the Hindu Succession Act, came to conclusion that all the four daughters and four sons of Chandram would be entitled to equal shares and on death of Basavraj, his share would go to his daughters and wife equally. In view of this , trial Court declared that the share of the plaintiff nos.1 and 2 would be 1/18th and the share of the plaintiff no.3 would be to the extent of 1/9th in the suit property. He also passed decree for partition and separate possession and for payment of mesne profits for the past three years and also enquiry for future mesne profits. That judgment has been challenged in the present appeal by the original defendant nos.1,3,6 and 7. 3 On hearing the learned counsel and on perusal of the judgment of the trial Court, it becomes clear that even though the defendants had taken a plea of partition, no evidence was led by them to prove this fact nor they had entered into witness-box to prove the contention about the partition. In view of this, no fault can be found with 3 the findings of the trial Court. The learned counsel for the parties conceded that the shares of the parties have been correctly determined by the trial Court. It appears that there is plea of the defendants that Basavraj had sold a piece of land, which was standing in his name and that was re-purchased by the defendant no.3. However, that part of the transaction has been explained in the plaint contending that property was joint family but only because of the ceiling on holdings family arrangement was made and that property was standing in the name of Basavraj and, therefore, he had executed the sale deed of that property on behalf of the joint family and later on, same property was re- purchased by the joint family. In view of the fact that defendants have not given any evidence, it is difficult to find any fault with the judgment and decree passed by the trial Court. 4 Therefore, the appeal stands dismissed. As the appeal itself is dismissed, civil application no.1115 of 2008 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)