1 SA 583.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 583 OF 2010 Udhav Raghoba Shinde and others .... APPELLANTS VERSUS Pandurang Tukaram Shinde & Oths. .... RESPONDENTS Mr. A.G.Dalal,Advocate holding for Mr. D.M.Autade, Advocate for the appellants. Mrs. M.D. Thube-Mhase, Addvocate for Resp. Nos. 1 & 2. CORAM : S.V. GANGAPURWALA, J. DATE : 07/03/2011 ORAL ORDER : 1. Heard the learned counsel for the respective parties. 2. This is Plaintiffs’ Second Appeal. The plaintiff had filed Suit for declaration of ownership and injunction in respect of suit properties bearing S.Nos. 173 and 174. 3. The Trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court confirmed the Judgment and decree of the trial Court and dismissed the Appeal. The plaintiff has assailed the said Judgment in the present Second Appeal. 2 SA 583.2010 4. Mr. A.G.Dalal along with Mr. D.M. Autade, the learned counsel for the appellants submit that the approach of the Courts was itself improper as against the written partition dated 22/10/1975. The Courts have relied on the theory of the defendants regarding oral partition on Gudi Padva day. In normal course, the written document should have prevailed over such a theory of oral partition. The partition was effected on 22/10/1975 and the said partition was re-written in the year 1992. The plaintiffs by cogent evidence have proved the same. It was further contended by the learned counsel for the appellants that two ( 2 ) brothers had filed Suit and the third brother, who is made defendant, had also accepted the case put-forth by the plaintiff and only one brother had come with the theory of oral partition on Gudi Padva. According to the learned counsel, when three ( 3 ) brothers are putting forth one case and only one brother is contending otherwise, the case put-forth by three ( 3 ) brothers should have been considered as it would be more probable. Even the preponderance of probabilities demand that the said case of three ( 3 ) brothers should be considered. Mr. Dalal, the learned counsel further contended that simply because the names were not mutated, according to the said partition deed, that would not be sufficient to negate the case of the plaintiffs. According to him, an isolated statement in the deposition of the plaintiff can not be construed as an admission so as to render the case 3 SA 583.2010 put-forth by the plaintiff unbelievable. 5. Per contra, Mrs. M.D.Thube – Mhase, the learned counsel for respondent nos. 1 and 2 contends that the case is based on appreciation of evidence. Both the Courts on appreciation of evidence believed the case put-forth by the present respondent. Even the plaintiff in his deposition categorically admitted that the partition had taken place on Gudi Padva day, which substantiate the case put-forth by the defendant. According to the learned counsel, the Court has taken into consideration all probabilities and the totality of the evidence and circumstances have been considered, which leads to an irreversible conclusion regarding the case put-forth by the defendants. 6. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments. 7. The contention of Mr. Dalal, the learned counsel for the appellants that written document should have prevailed upon the oral theory of partition, would normally be accepted. But, when both the parties have led their evidence, then in such circumstances, the totality of the evidence will have to be considered. The plaintiff in his deposition has categorically admitted that the partition had taken place on Gudi Padva day. 4 SA 583.2010 Not only that, even the names were never mutated in the relevant record on the basis of the partition deed dated 22/10/1975, which according to the plaintiff, was re-written in 1992. Even the plaintiff categorially admitted that the defendant Pandurang has constructed bore well in his land, which is in his possession. Even the witness of the plaintiff namely Vilas admitted that Pandurang dug bore well in his land and that he is in possession of the suit land. If the evidence led by the respective parties is weighed, both the Courts have found the evidence of the defendant and the case put-forth by the defendant to be reliable and probable. 8. In that light of the matter, the Courts have come to the possible and plausible conclusion. The Second Appeal can not be entertained only on the ground that some other view may also be possible. As such 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, the Civil Application does not survive and is also dismissed. [S.V. GANGAPURWALA, J.] knp/SA 583.2010