1 SA 150.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 150 OF 2011 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. R.N.Dhorde,Advocate for the appellants. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 06/04/2011 PER COURT : 1. This is plaintiffs’ Second Appeal. 2. The plaintiffs had filed Suit for possession or in alternate for partition and separate possession in respect of the suit properties. The trial Court dismissed the Suit holding that the part of the suit properties were ancestral properties, so also, the same were sold for legal necessity. The plaintiffs preferred Appeal. The appellate Court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. The appellate Court also came to the conclusion that some of the properties are ancestral properties except 2 SA 150.2011 properties bearing S.Nos. 82/2-B/2, 83/3 and 47/1. The properties which were sold by the father, were sold for legal necessity, so also it came to the conclusion that the Suit was not maintainable in view of the fact that all the persons who are necessary parties are not parties to the Suit, so also, the Appeal was not filed against the original defendant nos. 1 to 6 in whose favour the properties were alienated. Being aggrieved thereby, the plaintiffs preferred the present Second Appeal. 3. Mr. R.N.Dhorde, the learned counsel for the appellants submits that the father of plaintiffs had sold all the properties. The Court below has erroneously held that the property S.No. 82/2-B/2, 83/3 and 47/1 are not the ancestral properties. In fact, they are purchased from the nucleus of the joint family funds. According to the learned counsel, the Suit as against the alienated property was perfectly maintainable, so also, the finding that all the heirs are not the parties, is incorrect. 4. The learned counsel further contends that there was no impediment for the Court to grant the relief for partition and separate possession. 5. With the assistance of the learned counsel, I 3 SA 150.2011 have gone through the Judgments. 6. Both the Courts concurrently on evaluation of the evidence have come to the conclusion that the sale effectuated by the father of the plaintiffs was for legal necessity, in as much as the property was sold as there was pressure of payment of debt. Even Darkhast bearing R.D. No. 51 of 1989 was filed and the amount was required to be paid in the said Darkhast. Even there was loan of the Bank of Baroda. The said finding is the finding of fact. 7. More over, the Courts have discussed in detail the evidence in respect of the nature of the property and the manner of acquisition of the said property. The plaintiffs in an Appeal before the District Court, did not challenge the alienations made in favour of the defendant nos. 1 to 6 or in other words challenge to the said alienation was given up. In view of these facts, no error has been committed by the Courts below while dismissing the Suit. 8. The Second Appeal being sans substantial question of law, is dismissed however with no order as to costs. 4 SA 150.2011 9. In view of dismissal of the Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 150.2011