1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 853 OF 2007 Sou. Sonybai w/o Daguji Kadam Age 60, Occ. Household & Labour, R/o. Vitthalwadi, P.O. Vinchur, Tal. Niphad, Dist. Nashik. Appellant vs. (Org.Plaintiff) 1. Shri Balu Sakharam Shinde Age 57, Occ. Agriculture, R/o. Thtale, P.O. Vinchur. Tal. Niphad, Dist. Nashik. 2. Sau. Janyabai w/o. Shankar Navale, Age-65, Occ. Household & Agri. R/o. Udhrul, Tal. Chandwad, Dist. Nashik. 3. Sau. Manyabai W/o. Kalu Arote Age-62, Occ. Household & Agriculture, R/o. Waki, Tal. Chandwad, Dist. Nashik. 4. Sau. Baijalabi W/o. Laxman Bhosale, Age-54, Occ. Household & Agri. R/o. Sarole Khurda, Tal. Niphad, Dist. Nashik. 5. Sau. Bhimabai Shivaji Flwande Age 51, Occ. Household & Agri. R/o. Sarole Khurda, Tal. Niphad, Dist. Nashik. 6. Sau. Bhimabai Madhukar Pangavhane, Age 56, 2 Occu: Agriculture, R/o. Ugaon, Tal. Niphad, Dist. Nashik. 7. Shri Eknath Parvat Pangavhane Age Major, Occ: Agriculture, R/o. Ugaon, Tal. Niphad, Dist. Nashik. 8. Shri Ramchandra Pandharinath Pangavhane, age Major Occ. Agriculture, R/o. Ugaon, Tal. Niphad, Dist.Nashik. 9. Shri Barku Parvat Pangavhane, Age-Major, Occ. Agriculture, R/o Ugaon, Tal. Niphad, Dist. Nashik. 10. Shri Sukdev Valu Shinde Age Minor, Guardian Mother Sau. Jajibai w/o Valu Shinde, Defendant No.12 R/o. Thetale Tal. Niphad,Dist.Nashik. 11. Dipak Balu Shinde, Age-Minor, Guardian mother Jijabai w/o. Balu Shide, Deft.No.12, R/o Thetale, Tal. Niphad, Dist. Nashik. 12. Sau. Jijabai Walu Shinde, Age Major, Occu: Household & Agriculture,R/o. Thetale, Tal. Niphad,Dist. Nashik. .. Respondents (Org.defendants) . Mr. Anilkumar Patil,Advocate, for the appellant. Mr.Sachin Gite, i/b. M.S.KanikAdvocate, for the respondents Nos. 1, 6 to 12. CORAM: J.H.BHATIA,J. DATE : 14th September, 2009. 3 P.C. 1. The appellant before this Court is the original plaintiff, who had filed Regular Civil Suit No.257 of 1992. According to her, 1/6th share admeasuring 1 Hectare 21 Ares out of Gat No.72 admeasuring 6 Hectares 15 Ares was bequeathed to her under a Will by her father. She claimed partition and separate possession of the land Gat No.72, excluding the portion bequeathed to her, as well as the suit property consisting of 2 houses. Defendant no.1, who is the brother of the original plaintiff, claimed that in a partition which had taken place between himself and his father in 1981, the land Gat No.72 was allotted to his share and land Gat No.30 was allotted to his father, which was sold away by the father during his lifetime. According to him, under the Will, the father had bequeathed the House No.29 to him and the House situated in Gat no.72 was constructed by himself and therefore, no property was available for partition and the plaintiff does not get any right in the land Gat No.72 on the basis of the Will. 2. The trial Court rejected the claim of the plaintiff on the basis of the Will, however granted her 1/6th share in the land Gat No.72. Regular Civil Appeal No.42 of 2002 was preferred by the defendant no.1 as well as three others, who were subsequent purchasers. The first appellate Court held that in 4 1981, partition had taken place and in the partition land Gat No.72 was allotted to defendant No.1 and, therefore, the plaintiff could not claim any right in that land on the basis of the Will. It was also held that under the Will, house No.29 was allotted to defendant No.1 and the house in land Gat No.72 was not put to partition. In view of this, the appellate Court granted 1/6th share to the plaintiff only in respect of house situated in land Gat No.72, but the decree passed by the trial Court granting 1/6th share in the land Gat No.72 was set aside. Therefore, the plaintiff preferred present Appeal. 3. On perusal of the record and the evidence, it appears that the family held the lands Gat no.30 and Gat no.72 as well as two houses, one situated in land Gat No.72 and another house bearing Grampanchayat No29. Even though in 1974, after Will in respect of house No.29 in favour of defendant no.1 and a portion of land Gat no.72 in favour of the plaintiff, in 1981 a partition took place between the defendant no.1 and his father. In that partition, land Gat No.72 was alloted to defendant no.1 and land Gat no.30 was alloted to his father. The father sold away land Gat no.30 during his lifetime. In view of the partition, land Gat no.72 became the property of the defendant no.1. Therefore, the plaintiff could not get any share in land Gat no.72 on the basis of the Will executed by her father prior to the partition. 5 4. Coming to the house property, it appears that out of the two houses, father had bequeathed house No.29 to defendant No.1, but the house situated in land Gat No.72 was not put to partition. The first appellate Court granted share to the plaintiff and other sisters as well as the defendant No.1 1/6th share each in the house in land Gat No.72. The present Appeal is restricted only to land Gat no. 72 and does not challenge the validity of the Will to the extent of bequest of the house No.29 in favour of defendant no.1. Therefore, the validity of that bequest as well as the share in the house property are not in question before this Court in the Second Appeal. In view of the facts and circumstances noted above, the plaintiff could not get any share in the land Gat no.72 either under Will or by partition. 5. Therefore, there is no substance in the present Appeal nor any question of law is involved. 6. In the result, the Appeal stands dismissed. (J.H.BHATIA,J.)