( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 180 OF 2010 WITH CIVIL APPLICATION NO. 1391 OF 2010 Bajirao Garbad Patil .. Appellant Versus Ashabai d/o. Harchand Patil and ors. .. Respondents Shri Girish Rane, Advocate for the appellant. Shri N.N. Desle h/f. Shri V.B. Patil, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 18.06.2010 P.C. :- 1. This Second Appeal is directed against the judgment of partition and separate possession passed by the Jt. Civil Judge, Junior Division, Amalner in Regular Civil Suit No. 46 of 2003, decided on 02.08.2006, as confirmed in appeal bearing Regular Civil Appeal No. 35 of 2008, decided by the District Judge-1, Amalner on 28.11.2008. ( 2 ) 2. Heard Adv. Shri Girish Rane for the appellant and Adv. Shri N.N. Desle h/f. Adv. Shri V.B. Patil for respondent No.1. 3. The learned advocate Shri Rane canvassed that substantial question of law formulated by the appellant in para 2 of the appeal memo may be framed and on same this Second Appeal should be admitted. The first point is regarding holding that each of the three i.e. appellant and respondent Nos. 1 and 2 are entitled to 1/3rd share in the suit property. So far as the suit property being ancestral property is concerned, there is no dispute in as much as in para 2(c) of the appeal memo of the District Court, case is made out that the original plaintiff/respondent No.1 had entered into agreement of sale on 08.04.1991 with the wife of present appellant and possession was also delivered on same day, but said fact was concealed from the Court. The fact that original plaintiff/respondent No.1 had some share is not disputed. It is not disputed that respondent No.1 Ashabai is daughter of Harchand, who is brother of present appellant and present respondent No.2 is son of Kautik, who is another brother of the appellant. It is not disputed that Harchand ( 3 ) and Koutik are no more. It is also not say that there are any other sharers. In these circumstances, it cannot be said that the Trial Court has committed any error in holding that the appellant had 1/3rd share in the suit property. Whether respondent No.1/plaintiff would be entitled to actual possession of the property and whether wife of present appellant is entitled to protect her possession under agreement of sale is a matter not be decided in this Suit or appeal when wife of the appellant is not party. In case she is in possession on the basis of agreement of sale and is entitled to protection under section 53-A of the Transfer of Property Act, she can very well raise such point in execution. 4. After giving anxious consideration to every point that is argued by Adv. Shri Rane, in my opinion, there is no any legal or factual error in the decree passed by the Trial Court. It is true that the First Appellate Court framed only one issue and held that it was not case for remand. But after giving consideration to the submissions made, the judgment of the Trial Court and the points raised in the appeal memo of the District Court and this Court, in my ( 4 ) opinion, this is not a case where the appeal should be admitted. No substantial question of law arises in this appeal. The Second Appeal is dismissed at the stage of admission. 5. In view of dismissal of Second Appeal, Civil Application No. 1391 of 2010 does not survive. The Civil Application also stands disposed of accordingly. [P.R. BORKAR,J.] snk/2010/JUN10/sa180.10