1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.293 OF 2009. WITH CIVIL APPLICATION NO.10366 OF 2009 WITH CIVIL APPLICATION NO.3796 OF 2009. Prakashchandra Nandlal Modi since deceased through legal representatives - Mahendra Prakashchandra Modi and others ... Appellants. Versus Rameshchandra Shriniwas Modi since deceased through legal heirs - Radhadevi Rameshchandra Modi and others ... Respondents. ... Mr.S.P.Shah,, advocate for the appellant. Mr.D.S.Bharuka, advocate for the Respondent No. 1A. ... CORAM : S.V.GANGAPURWALA,J. Date : 06.09.2010. 2 PER COURT 1. The present appellant is the original defendant. The present Respondent had filed suit for partition and separate possession of his 2/3rd share. It is the contention of the plaintiff that the suit property was jointly purchased by the plaintiff, defendant and one Subhshchandra by registered sale deed dated 28.3.1970. It was further contended by the plaintiff that Subhashchandra had gifted his 1/3rd share to the plaintiff and as such the plaintiff became the owner of 2/3rd share. In that light, he had filed the suit. 2. Both the Courts have accepted the contention of the plaintiff and decreed the suit for partition and separate possession. 3. Mr.Shah, learned counsel contended that the plaintiff had earlier filed a simpliciter suit for injunction contending that he is in possession of the property and subsequently he withdrew the suit. As such the separate suit for partition and possession would not be 3 maintainable. He also contended that Subhashchandra could not have gifted his undivided 1/3rd share. 4. The cause of action to file suit for partition and separate possession is the cause of action "de die in diem". The suit for simpliciter injunction and its withdrawal would not affect the present proceedings. It is undisputed that the sale deed was in the name of plaintiff, defendant and Subhashchandra. It is also proved by evidence of Subhashchandra that he had given gift of his 1/3rd share to the plaintiff. The contention of the defendant that the name of plaintiff and Subhashchandra was nominally entered is also disbelieved by both the Courts below on the ground that there is no evidence that consideration was contributed by the defendant alone. In light of the above facts, no substantial question of law arises. The Second Appeal is dismissed with no order as to costs. 5. In view of dismissal of Second Appeal, 4 the Civil Applications do not survive. The Civil Applications are disposed of accordingly. (S.V.GANGAPURWALA,J.) asp/office/sa293.09