2025:BHC-AUG:10634 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD

901 SECOND APPEAL NO. 54 OF 2024

1. Babasaheb s/o. Raghunath Makode, Age: 43 Years, Occu. : Agri, R/o. Markenday Nagar, Manwath, Tq. Manwath, District Parbhani

2. Balasaheb s/o. Raghunath Makode, Age:41 Years, Occu : Agri, R/o. Markenday Nagar, Manwath, Tq. Manwath, District Parbhani.

3. Radhabai w/o. Raghunath Makode, Age: 66 Years. Occu : Agri.

R/o. Markenday Nagar, Manwath, Tq. Manwath, District Parbhani.

4. Ratnamala w/o. Jagannath Deshmane, Age: 5l Years, Occu : Household, R/o. House No.73, Gondhale Nagar, Lokhandi Pul Road, Hadapsar, Pune 28, Tq. & District Pune.

5. Ashabai w/o. Vaijanath Shastri, Age:49 Years. Occu : Agri, R/o. Godu Galli, Manwath, Tq. Manwath, District Parbhani.

6. Ushabai w/o. Bandu Dehadare, Age; 46 Years, Occu : Household, R/o. Shevgaon, Tq.Pathardi, District Ahmednagar. ...APPELLANT (Ori. Defendant No.l to 6)

VERSUS

1. Leelabai @ Neelabai w/o. Babulal Deshmane Age: 72 Years, Occup: Household, R/o. Pargaon Japti, Tq. & District Beed, At Present House No.73, Survey No.16, Gondhale Nagar,, Lokhandi Pul Road, Hadapsar, Pune 28, Tq . & District Pune. ...RESPONDENT (Ori. Plaintiff)

...

Mr. Jaju Nikhil Santosh, Advocate for Appellants Mr. Avinash A. Khande, Advocate for Respondent/sole ...

CORAM : ROHIT W. JOSHI, J.

DATE : 2^ND APRIL, 2025 ORAL JUDGMENT :

1. Appellants in the present appeal are original defendants and respondent is the original plaintiff. Respondent/plaintiff is sister of Raghunath who is deceased father of appellant Nos.1, 2, 4 to 6 and husband of appellant No.3. The parties will be referred in the body of the judgment as plaintiff and defendants.

2. The plaintiff has filed a suit for partition and separate possession against defendants who are widow and children of her late brother Raghunath being Regular Civil Suit No.68 of 2013 inter alia claiming partition and separate possession with respect to the suit properties which comprise of an agricultural land. She has given up right to seek partition with respect to residential house. The defendants appeared in the matter and opposed the suit contending that the plaintiff had relinquished her share in the properties of the family in the year 1988 and was therefore not entitled to the relief of partition and separate possession.

3. Maruti i.e. father of the plaintiff and deceased Raghunath, is the original owner of the suit property. He expired on 04.05.1981, leaving behind three class-I legal heirs, namely Thakubai, his widow, plaintiff, his daughter and Raghunath, his son. The contention of the plaintiff and defendants is that the suit property was ancestral property of late Maruti.

4. The learned Trial Court has decreed the suit granting a decree for partition and separate possession in favour of the plaintiff vide judgment and decree dated 06.04.2016. The learned Trial Court has granted 1/4^th share to the plaintiff in the suit property and it is held that defendant Nos.1 to 6 are entitled to the remaining 3/4^th share. The plaintiff has not challenged this decree passed by the learned Trial Court, however, the defendants filed first appeal being, Regular Civil Appeal No.53 of 2016 which came to be dismissed vide judgment and decree dated 06.01.2024 passed by the learned District Judge-I Parbhani. It will be pertinent to mention that although the plaintiff did not file appeal or cross-objection, the learned District Judge has modified the decree thereby enhancing the share of the plaintiff from one-fourth as was decreed by the learned Trial Court to half.

5. Aggrieved by the said decrees the original defendants have filed the present Second Appeal. The learned advocate for the appellants contends that the plaintiff had relinquished her share in the suit property in the year 1988 itself. It is then contended that the suit is barred by limitation since relinquishment of the property amounts to exclusion. Apart from this, it was contented that there was a partition with respect