1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.894 OF 2009. Sampat S/o Ambadas Thorat and others ...Appellants. Versus Vikram S/o Sampat Thorat and others ... Respondents. ... Mr.S.J.Salunke, advocate for the appellants. Mr.Rahul Dhase, advocate for the Respondent No.1 Caveator. ... CORAM : V.R.KINGAONKAR,J. Date : 15.12.2009. PER COURT 1. Heard counsel. 2. The appellants are original defendants. The Respondent Nos.1 and 2/plaintiffs filed suit (RCS No.420/1988) for partition and separate possession in respect of the properties on the 2 ground that they are the son and wife of defendant No.1 and were not being provided separate share in the ancestral properties. The suit came to be decreed. The decree is maintained by the first appellate Court. It was the contention of the defendant No.1 that the plaintiff No.1 is not his legitimate son. It was alleged that the plaintiff No.2 had left house of the defendant No.1 before about thirty (30) years and there was no access between them. Both the Courts rejected such contentions of the defendant No.1. Mr.Salunke, would submit that issues were not properly framed. He would submit that because the burden was not placed on the defendant No.1 to prove illegitimacy of the plaintiff No.1. There was no proper opportunity to lead evidence on this issue. He contended that the first appellate Court though noticed such error, yet, proceeded to dismiss the appeal. In my opinion, wrong placing of burden on shoulders of the plaintiffs could not be a sufficient ground to remand the suit by the first appellate Court. It is important to note that the issue regarding legitimacy of the plaintiff No.1 as son of the 3 defendant No.1 was framed by the trial Court. Other side of the coin of the said issue is, naturally, as to whether the defendant No.1 proves the alleged illegitimacy. Moreover, as the trial proceeds further, the question regarding burden of proof becomes only academic. There is hardly any reason to assume that the appellants were prejudiced due to wrong placement of the burden of proof. It was for the appellant No.1 to prove the absence of access with his wife i.e. plaintiff No.2 during the relevant period. Considering the nature of controversy and the concurrent findings of facts, I do not find any substantial question of law involved in the Second Appeal. Therefore, the Second Appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa89409