1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO.149/2011 Gunitrao @ Gunwantrao Bhuraji Bhokte (Dead) (Original Defendant)through L.Rs. Vinod s/o Gunwantrao Bhokte and others ...Versus... Vitthal s/o Mahadeorao Bhokte Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. [Shri N.N. Motghare, Adv. for appellants] CORAM : A.B. CHAUDHARI, J. DATED : 30.03.2011. In support of the second appeal, learned Counsel for the appellants argued that the trial Court as well as the appellate Court committed an error in not finding that already there was partition on 11.4.1992 and therefore, the suit was liable to be dismissed. He further argued that there was a Will produced on record at Exh.38 under which it was seen that the property in possession of the appellant was excluded which inferentially therefore means that the appellant was entitled to retain the suit property. He then argued that the sisters were not made party to the suit and therefore, the suit was not maintainable for non-joinder of the necessary parties and therefore, the suit needs to be dismissed. 2 I have heard learned Counsel for the appellants and I have gone through the judgments and orders of both the Courts below. At the outset, I find that the trial Court has recorded a finding of fact in paragraph No.8 of the impugned judgment that the partition was not proved by the appellant, who claimed that there was a partition on 11.4.1992. Not only that the trial Court, in my opinion, has rightly found that the appellant set up a story in the written statement that the said partition was in writing and then having found that the said partition document was not admissible in evidence, favouring partition therefore, was rightly discarded by the Courts below. Apart from that the trial Court found that the evidence regarding possession clearly shows that the partition was never implemented or brought into existence. On the contrary, the 7/12 extract shows otherwise than what was contended by the appellant. Finding of fact recorded by the Courts below negating the theory of partition does not suffer from any infirmity. In so far as the submission regarding Will (Exh.38) is concerned, the same has nothing to do with the suit for partition which was brought by the plaintiff. Submission to draw inference from the said Will is misconceived. It was the right of the plaintiff to 3 claim partition particularly when no partition was found to have existed on 11.4.1992. As regards the submission about non-joinder of parties, I find that no such plea was raised nor any such issue was framed in the trial Court and the trial Court dealt with the said issue because Counsel for the appellant had argued accordingly. At any rate, the trial Court dealt with the issue in paragraph No.8 in legal and correct manner, leaving the sisters to have their right worked out in the appropriate proceedings, if necessary. However, in my opinion, since the point was never raised in the Courts below, it is not possible to allow Counsel for the appellant to raise this point about non-joinder of the parties. In view of the above, I find no merit in the present second appeal. The same is, therefore, dismissed. No order as to costs. JUDGE ssw