:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE APPEAL FROM ORDER NO.63 OF 2007 APPEAL FROM ORDER NO.63 OF 2007 APPEAL FROM ORDER NO.63 OF 2007 Vijay Dnyaneshwar Tapkir & Anr. ...Appellants. v. Sudhakar Ramchandra Nelekar & Ors. ...Respondents. Mr.R.A.Thorat , adv. for the Appellants. Mr.Rupesh Nalawade , adv. for the Respondent No.1. Shri S.R.Nargolkar, adv. for the Respondent Nos.14 to 16. Shri P.B.Gujar, adv. for the Respondent Nos.3 to 7, 17 to 26. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 4th June, 2008. DATE: 4th June, 2008. DATE: 4th June, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. The respondent nos.1 and 2 before this Court are the original plaintiffs. They filed Regular Civil Suit No.1163 of 1992 for partition and separate possession in the suit property bearing survey no.758/6 (New Survey No.218/6) of Village Vadmukhwadi Charholi. It was previously Inam land and after abolition of Inam land, it was re-granted. One Shankar was holding this property and some other property as a joint family property. It was contended that partition had taken place earlier in respect of remaining property but the suit property was not put to a partition. Plaintiff :2: nos.1 and 2 claimed to be son and daughter respectively of one Gajarabai, who was daughter of the said Shankar. Gajarabai died in 1946 and Shankar died in 1969. The present petitioners, who are original defendant nos.7 and 9A made an application to the trial Court to reject the plaint under Section 7(11) of the Civil Procedure Code on two grounds. Firstly, in the previous litigation, plaintiffs were not shown as legal heirs of Shankar and because their mother had died before Hindu Succession Act, 1956 came in force, they could not be legal heirs of Shankar. Secondly, the property was impartible under the Act. The trial Court accepted both the contentions and rejected the plaint. 3. That order came to be challenged by the plaintiffs in Civil Appeal No.771 of 2003. Appeal was allowed. The appellate Court held that the plaintiffs should have an opportunity to prove that they are legal heirs of Shankar and that can be done only after the trial. The Appellate Court also noted that there was no document showing agreement or covenant under which the suit property was shown to be impartible and unless such a document or evidence is produced, it can not be inferred that the property is impartible. 4. With these observations, the appellate Court set aside the order passed by the trial Court and remanded the matter back to the trial Court for hearing and :3: disposal as per the law. That order is challenged in the present appeal by the original defendant nos.7 and 9A. 5. At the time of arguments before this Court, the learned counsel for the appellants fairly conceded that there is no document showing that the suit property is impartible. Even though in a previous suit, present plaintiffs were not shown legal heirs of Shankar, that could not be binding on the plaintiffs because they were not parties and so that was not their admission. According to the plaintiffs, they are the grandsons of Shankar. As stated above, Gajarabai daughter of Shankar died in 1946 but Shankar himself died in 1969. Son of predeceased daughter and daughter of predeceased daughter are heirs of Class I as per the Schedule to Hindu Succession Act. In view of this, both the plaintiffs may claim to be legal heirs of Shankar. Whether they are really grandsons of Shankar is a question of fact, which has to be proved by giving evidence before the Court. 6. Taking into consideration these circumstances, I find no fault with the impugned order passed by the District Court. There is no substance in the appeal. 7. In the result, appeal stands dismissed. :4: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)