1 SA 349.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 349 OF 2010 _____________________________________________________________ Office Notes, Office | Memoranda of Coram, Court's or Judge's orders appearances, Court's | orders or directions and Registrar's orders | _____________________________________________________________ Mr. Mukul Kulkarni, Advocate holding for Mr. B.N.Suryawanshi, Advocate for the appellant Mr. A.N.Sabnis, Advocate holding for Mrs. A.P.Shah, Advocate for the respondent. ........................... CORAM : S.V.GANGAPURWALA, J. DATE : 21/12/2010 PER COURT : 1. Heard Mr. Mukul Kulkarni, Advocate holding for Mr. B.N.Suryawanshi, Advocate for the appellant and Mr. A.N.Sabnis, Advocate holding for Mrs. A.P.Shah, Advocate for the respondent. 2. This is defendant’s Second Appeal. The plaintiff had filed Suit for partition and separate possession. Both the Courts decreed the Suit. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mr. Mukul Kulkarni, learned counsel for the appellant contends that the partition deed which has been relied by the Courts to show 2 SA 349.2010 that the suit property was allotted to the share of the appellants, was inadmissible in evidence in as much as it is an unregistered instrument. In such circumstances, the theory put-forth by the plaintiff could not have been relied upon. The learned counsel further contended that issue no. 3 as was framed by the trial Court, if the same is to be accepted, then the mutation entry pursuant thereto should have been relied upon and the plaintiff was ousted from his share. These aspects, according to the learned counsel, have not been considered by the Courts below. 4. Per contra, Mr. Sabnis, learned counsel for the respondents submits that the partition deed is not required to be registered as it is between the co-sharers. According to the learned counsel, the plea of ouster has not been proved as is required under the statute. 5. With the assistance of the learned counsel, I have gone through the Judgments. 6. It is not disputed that the suit property was an ancestral property. The contention that the partition deed could not have been relied upon as the same is not registered, is not sustainable on the count that the said partition was amongst the co-sharers. When the partition is amongst the co-sharers, it is simply defining the rights. Each and every party inherently has got right in the property and by partition, the 3 SA 349.2010 same is clearly defined. 7. In that light of the matter, the objection regarding registration is not sustainable. The plea of ouster requires the specific proof. It is also presumed that possession of co-sharer is on behalf of others, unless by some overt acts, the plea of ouster is proved. In the present case, both the Courts have concurrently held that the defendants could not prove the theory of ouster. 8. In light of the above, the Second Appeal being sans substantial question of law, is dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, Civil Application does not survive and is disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/SA 349.2010