1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 762 OF 2008 Madhavrao s/o Balabhau Bhatalwande & another .. APPELLANTS VERSUS Laxmikant /so Balabhau Bhatalwande & another .. RESPONDENTS Shri P.G. Godhamgaonkar, Advocate for the appellants. Mrs. A.D. Rakh, Advocate for resondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 16 th September, 2009 PER COURT : 1 This is an appeal by original defendant nos. 1 and 2 raising exception to the judgment and decree passed by the 3 rd Additional District Judge, Nanded in Regular Civil Appeal no. 144/1992 on 8-8-1997. 2 It transpires from record that appeal by appellant no. 1 / original defendant no. 1 stands dismissed in view of order passed by this court on 5-2-2009. It is stated that the concerned appellant is dead and no steps are taken to to bring on record his legal representatives neither his legal representatives are impleaded as respondents in the appeal. This appeal is 2 contested by defendant no. 2 who claims that he steps into shoes of defendant no. 1 by virtue of alienation made in his favour of defendant no. 1. 3 Plaintiffs instituted suit claiming perpetual injunction and in the alternate for partition and separate possession of land survey no. 457/3 admeasuring 66 R and field survey no. 457/6 admeasuring 49 R at village Loha. Plaintiff no. 1 is the brother of defendant no. 1 whereas plaintiff no. 2 is son of deceased brother of plaintiff no. 1. According to plaintiffs, they have 1/3 rd share in the suit property which has not been partitioned amongst plaintiffs and defendant no.1. Defendant no. 1 without any entitlement has executed sale-deed in respect of the joint family property in favour of defendant no. 2. Plaintiffs contend that alienation made by defendant no. 1 in favour of defendant no. 2 does not bind them. Plaintiffs thus claim that they have 2/3 rd share in the suit property. 4 Defendants appeared and controverted the contentions by filing written statement. According to defendant no. 1 there was earlier partition prior to 1965. It is his contention that the plaintiff has alienated ancestral house property and appropriated consideration amount for himself. It is his 3 further contention that in lieu of part of consideration amount, he has relinquished his share to the extent of 1/3rd in favour of the defendant. Defendant thus contends that the plaintiff has no entitlement to the property in view of earlier division of the property amongst themselves. Defendants therefore pray for dismissal of the suit. 5 Trial court after recording evidence of the parties, did not find favour with the plaintiff and dismissed the suit by judgment and decree dt. 21-2-1992. Plaintiffs being aggrieved by judgment passed by the trial court preferred Regular Civil Appeal no. 144/1992 which came to be heard and disposed of by the 3 rd Additional District Judge, Nanded who was pleased to allow the same by judgment and decree dt. 8-8-1997. First appellate court held plaintiffs entitled to have 1/3 rd share in the suit property. 6 I have perused the judgments recorded by both the courts below. Shri Godhamgaonkar, learned counsel for the appellants has vehemently contended that in view of earlier partition effected between plaintiff and defendant no. 1 they are not entitled to claim share in the landed property. It is his contention that there is specific defence raised by defendant no. 1 that plaintiff has alienated the house property and appropriated the 4 consideration amount and in lieu thereof has relinquished his share in the landed property. According to appellants therefore, plaintiff is not entitled to claim share in the landed property. Contention in respect of earlier partition prior to 1965 is taken into account by the first appellate court. It is found on perusal of the document placed on record in the form on 7/12 extracts and mutation entries that even after 1965 agricultural property is shown standing in the name of plaintiff as well as defendants. Had there been partition as contended by defendant no. 1, there was no reason for recording name of plaintiff in respect of the agricultural property after 1965. Defendant no. 1 in his cross examination has also admitted that for certain period even after 1965, plaintiff was cultivating the suit land. This aspect goes to establish that the defendant no. 1 has failed to establish his defence raised in the written statement as regards earlier partition. There is also no evidence placed on record regarding alienation of house property by plaintiff and appropriation of consideration alone by him and further relinquishment of share in the agricultural property in favour of defendant no. 1. In the absence of evidence, contentions raised by defendant are not worthy of acceptance. View adopted by the first appellate court appears to be reasonable and proper. Arguments advanced in the appeal are essentially matters relating to appreciation of evidence. No substantial question of law arises for 5 consideration in the appeal. Appeal therefore stands dismissed summarily. 7 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa762.08.odt