vsa 1 SA417_2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 417 OF 2010 Smt. Hijubai Tukaram Patil (since deceased) through her legal heirs Shri Gajanan Tukaram Patil & Ors. ).. Appellants Versus Shri Jayaram Marya Patil (since deceased) Through his legal heirs Shri Vasdant Jayaram Patil & Ors. ).. Respondents Mr. Nitin Dhumal and V.L. Patil, Advocate for the Appellants. CORAM : A.S. OKA, J. DATE : 7th DECEMBER, 2011. P. C. Heard the Learned Counsel appearing for the Appellants. 2. The Appellants are the Original Defendants in the suit filed by the respondents for partition. The Trial Court passed a decree for partition. In an appeal preferred by the Appellants, the said decree has been confirmed. Both the Courts below have rejected the case of the Appellants that during the life time of Marya Patil, the suit property was partitioned. 3. The submission of the Learned Counsel appearing for the Appellants is that in the cross-examination of 1st respondent Vasant Patil, he admitted that there was a land bearing Survey No. 88/3, which was standing in the name of his father Jayram, who was the original plaintiff. The Learned Counsel appearing for the Appellants submitted that the vsa 2 SA417_2010 said property ought to have been included in the list suit properties, as the same is also required to be partitioned. He relied upon the evidence of one Parshuram Patil examined by the Original Plaintiff and pointed out that in the cross-examination, he admitted that during the life time of Marya Patil there was a partition and 6 to 7 properties were alloted to the share of the original plaintiffs. He, therefore, submitted that the impugned judgments and decrees are perverse and illegal. 4. I have considered the submissions. As far as the 1st contention is concerned, there is only a vague statement in the written statement that it appears that certain properties which could have been subjected to partition, do not form part of the suit properties. There is no specific pleading as regards land bearing Survey No. 88/3. In the absence of any specific plea, the said contention could not have been considered by both the Courts below, as there was no opportunity to the Original Plaintiffs to deal with the said contention. 5. As far as evidence of witness Parshuram Patil is concerned, he was unable to tell which properties were allotted to the share of the Original Plaintiff. He has merely stated that there was a partition and six to seven properties were allotted to the Plaintiff. 6. In view of findings of fact recorded by both the Courts below, no substantial question of law arises. Second appeal is dismissed with no order as to costs. 7. Civil Application No. 1047 of 2010 does not survive. (A.S. OKA, J)