1 49-sa-113-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj SECOND APPEAL NO.113 OF 2011 WITH' CIVIL APPLICATION NO.256 OF 2011 Mr. Kondiba G. Kenjale (since deceased) through his Legal Heirs & Others .. Appellants. V/s. Jagannath R. Kenjale (since deceased) through his Legal Heirs & Others. .. Respondents. Mr. U. R. Mankapure, for Appellants. None for Respondents. CORAM : G.S.GODBOLE, J. DATE : 29th AUGUST, 2011. P.C.: 1 Heard the learned Advocate for Appellants. 2 Two Plaintiffs have filed Regular Civil Suit No.171 of 1986 in the Court of learned C.J.J.D, Koregaon, for partition and separate possession. The fact that Ganu A. Kenjale was the father of Defendant No.1 and Rangrao ( father of Plaintiffs) is not disputed. The fact that Ganu died intestate in the year 1954 is not disputed. The further fact that his widow 2 49-sa-113-2011.sxw Banubai died intestate in 1964 is not disputed. 3 Three defences were raised namely:- (a) bar of limitation; (b) prior partition; (c) self acquisition of Gat No.64 by Defendant No.1. 4 By well reasoned Judgment and Order dated 3rd September, 2002, the learned C.J.J.D., Koregaon decreed the suit. Suit was held to be within limitation as no ouster was pleaded or proved and the cause of action was found to have been arisen in the year 1986. Plea of Defendant No.1 of having acquired Gat No.64 from his individual income was turned down on account of his failure to show sufficient separate income and on account of the fact that the parties were residing jointly and holding joint family property. The case regarding so called Consent Deed at Exhibit 115 has also been rejected on account of failure of the Defendant No.1 to prove the contents of the said document. The theory of previous partition is also rejected, though a finding is recorded that only on account of convenience, separate portions of land has been cultivated, without any previous partition. 5 Civil Appeal No. 303 of 2002 filed by the Original Defendants 3 49-sa-113-2011.sxw has been dismissed by learned District Judge-II, Satara by impugned Judgment and Order dated 25th October, 2010. The Cross Objections filed by Defendant No.1-D and 1-E are allowed and amongst Plaintiffs, different shares were allotted. This ½ share have already been allotted to the Plaintiff by the Trial Court. 6 The learned Advocate for Appellants submits that findings which were recorded are perverse and once there was prior partition, the suit must have been treated to be one for partial partition and was not maintainable. He also submits that suit is barred by limitation. It is lastly submitted that the shares allotted by the Appellate Court are incorrect, even if the property is treated to be joint. 7 None of these submissions have merits. In view of the clear finding regarding prior partition and since Defendants failed to prove either prior partition or ouster or acquisition of Gat No.64 exclusively, there would be no question of the suit being a suit for partial partition. 8 Exclusion/ ouster is not proved and in so far as the modification of the shares allotted by the First Appellate Court is concerned, the learned Advocate for Appellant fairly accepts that there is no modification of the shares which would affect the rights of the Appellants. 4 49-sa-113-2011.sxw 9 No question of law arises. Second Appeal is dismissed. Civil Application No. 256 of 2011 does not survive and the same is dismissed. (G.S.GODBOLE, J.)