ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 818 OF APPEAL NO. 818 OF APPEAL NO. 818 OF 2007 2007 2007 Mukund Ramchandra Kanitkar by L.Rs. Deepak M.Kanitkar & Ors. ...Appellants. Vs. Gangaram Gajanan Kanitkar & Ors. ...Respondents. Mr.Deepak A.Patil for the Appellants. Mr.P.D.Dalvi for Respondent Nos.1 & 2. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 19th June, 2008 : 19th June, 2008 : 19th June, 2008. P.C. P.C. P.C. . The original defendants have filed the present Second Appeal against the concurrent findings given by the Courts below with regard to the partition of the H.U.F. properties in question. The Appellate court, however, made slight modification which is reproduced as under:- . Impugned Judgment and Decree is confirmed with modification that 9 Acres and 34 gunthas of land, as described in Village Form No.12 (Exh.126) on the record of the suit be treated as joint family property for calculating the shares and while allotting the shares, the share inclusive of the said 9 Acres 34 gunthas of agricultural land and house No.58 A admeasuring 279 sq.yards of ( 2 ) village Gundge, Tq.Karjat, shall be allotted to share of present Respondents/ original plaintiffs. 2. The Respondents-original plaintiffs have not challeged the said order but it is only the Appellants-original Defendants, on the grounds that the properties which are not described in the plaint are taken note of and the necessary parties were not joined in the proceedings. 3. In Writ Petition No.7384 of 2005 against the order passed by the Courts below on the application for amendment, this Court has passed the order as follows against the appellants:- 2". The respondents filed a suit for partition against the pre-deceaser in title of the petitioners by name Mukund Ramchandra Kanitkar, since deceased. 3. The suit came to be decreed and thus, regular Civil Appeal is preferred. By the proposed amendment, various pleas for the first time are raised and the same ( 3 ) are to the following effect: a) That all the ancestral properties which are described in the application are not made subject matter of the partition suit. b) That some of the properties (which are not specifically described) are exclusively owned (self acquired) properties of defendant No.1 and lastly; c) that the heirs of deceased Mahadu so also heirs of Ramchandra and Gopal who are named therein are not impleaded as party defendants, rendering the suit untenable. 4. Suffice it to state that for the first time, the petitioners/ appellants are trying to raise these pleas without their being any foundation in the Written Statement in that regard. 5. The learned counsel for the respondents has pointed out that as a matter of fact ( 4 ) all the properties which are referred to in the amendment application are the subject matter of partition suit and hence, the objection raised in the proposed amendment is devoid of any merits. It is pointed out that the pleas raised are not legal pleas as no factual foundation is brought on record so as to enable the first appellate court to consider the said pleas. It is pointed out that no description of the properties is given in the amendment application which are claimed to be self acquired properties of defendant No.1 and only vague averments are made. 6. Perused the application for amendment. So also the impugned order passed by the appellate court. No fault can be found in the order. In the result, writ petition is summarily rejected." 4. Having once obtained the order as referred above which remained final issue as agitated again in the Second Appeal is impermissible. Even otherwise, ( 5 ) admittedly, there is no dispute about the fact that the properties involved in the suit are joint (H.U.F.) properties. The findings so arrived at by the Courts below, after considering the rival contentions including the submission as agitated by the Appellant which are settled by the above order in Writ Petition and granted partition, in my view the said order is not perverse and or contrary to the record. The partition so granted based upon the respective rights of the parties just cannot be disturbed merely for want of pleadings and or description of some of the properties and specially in the present case, as the same issue has been settled pursuance to the order dated 7th November, 2006. 5. The reliance, therefore, on the Supreme Court Judgment Om Prakash & Ors. Vs. Ram Kumar & Om Prakash & Ors. Vs. Ram Kumar & Om Prakash & Ors. Vs. Ram Kumar & Ors.(1991) Ors.(1991) Ors.(1991) 1 Supreme Court Cases, 441 1 Supreme Court Cases, 441 1 Supreme Court Cases, 441 in reference to the order 7, Rule 5 and 7 in a suit for partition of this nature and in the present facts and circumstances are of no assistance to the opponents and even otherwise that cannot be the reason to interfere with the findings arrived at by the Courts below by granting the partition. ( 6 ) 6. In view of this, there is no substance in this second Appeal and is dismissed, accordingly. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)