1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO. 20 OF 2008 WITH CIVIL APPLICATION NO.586 OF 2008 Mahadeo s/o Raghunath Kolhe .. appellant/orig. defendant No.1. vs Shantabai w/o Raghunath Kolhe, Respondents/ No. and another. 1 orig.plaintiff & No.2 ori.deft. No.2. ----------------------------------------------- Shri S.S. Chaudhary,Advocate,for the appellant. Shri V.G. Mete, Advocate, for Respondent No. 1. Appeal is dismissed against Respondent No. 2, vide Court's order dated 16.4.2010. ----------------------------------------------- Quorum: Shrihari P. Davare,J. Date : 03.02.2011. P.C. 01. Heard learned counsel for the parties. 02. The appellant herein, who is the original defendant No.1, who has lost before both the lower courts, has filed this second appeal, challenging the judgment and order dated 1.12.2007 rendered by the learned Adhoc District Judge-1, Osmanabad, dismissing Regular Civil Appeal No.186 of 2001 filed by the appellant herein, and thereby confirming the judgment 2 and decree dated 6.8.2001 passed by the learned Civil Judge, Junior Division, Kallam, Dist. Osmanabad, decreeing Respondent No.1's suit bearing R.C.S. No. 17 of 1994. Accordingly, it is apparent that there are concurrent findings against the present appellant. Parties are hereinafter referred to, as per their original status as Plaintiff and Defendants. 03. The plaintiff, namely, Shantabai, is the mother of Defendant No.1 Mahadeo and Defendant No. 2 Surekha is the wife of Defendant No.1. The Plaintiff filed suit for partition, separate possession of the suit properties i.e. land Gat No.484 admeasuring 1 hectare, 51 R. and Gat No. 45 admeasuring 32 R. situated at village Havargaon, Taluka Kallam, District Osmanabad, and also prayed for injunction against the Defendants seeking to restrain them from alienating the suit properties to anybody, in any way. According to the plaintiff, there was joint family of the plaintiff herself, Defendant No.1 and Defendant No.2, and apart from Defendant No.1, plaintiff had three daughters, namely, Rajubai, Mirabai and Sakhubai. Husband of the plaintiff died about 20 years prior to filing of the suit. Defendant No. 1 sold land admeasuring 2 hectare 61 R. out of Gat No. 45, due to his ill habits. The plaintiff also contends that Defendant No. 2 is not a co-parcener of the family and thus, had no right to claim partition, but still Defendant No.1 has transferred land Gat No.484 in the name of Defendant No.2, by way of partition. It is also contended by the plaintiff that the Defendants are trying to alienate the suit land to other persons and 3 hence, plaintiff claimed 1/2 share therein, but the defendants refused the same and, therefore, plaintiff was constrained to file the suit before the Court, seeking partition and separate possession, as well as for injunction, as aforesaid. 04. Defendants No. 1 and 2 filed Written Statement at Exh.26 and resisted the suit claim of the plaintiff. Defendants admitted the fact that the suit properties are the ancestral properties, but defendant No. 1 denied that he has sold the land admeasuring 2 hectares, 21 R. for his ill habits as alleged, and also denied that Defendant No.2 had no right to ask for the partition. It is stated by Defendant No.1 that his father Raghunath had two wives, namely, Shantabai and Gajarabai, but Gajarabai died issueless about 12 years back. It is also stated by Defendant No.1 that after death of his father Raghunath, the plaintiff, defendant No.1 and his three sisters became owners and possessors of the suit properties of Raghunath, and accordingly, mutation entries were effected on 29.11.1970. However, defendant No. 1 was minor at the time of death of his father Raghunath, and taking benefit of said minority, the plaintiff and Gajarabai gifted land admeasuring 2 hectare 14 R. out of Gat No. 462, and land admeasuring 77 R. out of Gat No. 465, in favour of Mirabai, by way of registered gift deed, although they had no right therefor. It is also contended by Defendants that Defendant No.1 sold the land admeasuring 1 hectare 21 R. out of Gat no.45 to Babasaheb, to meet legal expenses, and he also sold land admeasuriang 4 1 hectare 40 R. out of said Gat No.45 to Vithal Ankush, to meet the family expenses, and also sold portion of 30 R. out of Gat No. 47 and also an area of 38 R. out of Gat No. 45 to Sushilabai Landge, by way of registered sale deed and thus, said Sushilabai became owner and possessor of the said land, and mutation entry Nos. 370 and 371 were made to that effect. It is also contended by defendant No. 1 that the suit is bad for non joinder of necessary parties and in view of foregoing facts, same is liable to be dismissed. 05. Based upon the pleadings, learned trial judge framed the issues, and considering the rival pleadings and evidence adduced and produced by the parties, decreed the said suit in favour of the plaintiff by judgment and decree dated 6.8.2001, and declared that the plaintiff has 1/2 share in the suit properties, and directed that partition of the suit properties be effected and the plaintiff be put in separate possession of her 1/2 share therein. 06. Being aggrieved and dissatisfied by the said judgment and decree of the trial court, Defendants preferred Regular Civil Appeal No.186 of 2001 before the District Court, Osmanabad, and as stated earlier, learned Adhoc District Judge-1, dismissed the said appeal, by judgment and order dated 1.12.2007, thereby confirming the judgment and decree of the trial court. Thus, having lost before both the lower courts, the defendants have preferred present second appeal, impugning the said dismissals. 5 07. Shri S.S. Chaudhary, learned Counsel for Defendant No.1, submitted that the plaintiff has not incorporated all the ancestral properties in the present suit for partition and hence, there is bar of Order II, Rule 2 of the Code of Civil Procedure, and trial court, as well as first appellate court, failed to consider said legal aspect and, according to learned Counsel, same is the substantial question of law to be considered in the present appeal. 08. However, Shir V.G. Mete, learned Counsel for Respondent No.1- original plaintiff, invited my attention to issue No.7 framed by the trial court and pointed out that the trial court has framed issue in that respect and finding on the said issue is in paragraph 23 of the judgment of the trial court. Accordingly, it appears that learned trial judge has dealt with the said aspect and observed that admittedly, the plaintiff has not included land Gat No.506 standing in the name of Defendant No.1, in the suit, but it was submitted by the plaintiff that she did not claim any share in it and, therefore, the said issue was answered, accordingly. 09. Moreover, the first appellate court also framed issues in that respect and confirmed the said finding of the trial court, and the reasoning adopted by both the courts below, cannot be faulted with. Consequently, there is no substance in the submission advanced by learned Counsel for Defendant No.1 in that respect. 6 10. Shri S.S. Chaudhary, learned counsel for Defendant No.1 also submitted that the suit filed by the plaintiff is bad in law for non joinder of necessary parties, since three daughters of the plaintiff, namely, Rajubai, Mirabai and Sakhubai, were not impleaded as parties to the suit for partition. In the said context, it is seen that the learned trial judge framed issue No.7-A in that respect and observed that the plaintiff had examined all her three daughters and they have orally relinquished their right in favour of the plaintiff and consequently, learned trial judge held that the suit would not be bad for non joinder of necessary parties. 11. Moreover, the first appellate court also framed the issue in that respect, namely, whether the suit is hit for want of necessary parties, and answered the same in the negative and thus, confirmed the finding of the trial court in that respect. Considering the reasoning adopted by both the lower courts in respect of the said issue, there does not appear to be any flaw therein and hence, there is no substance in the submission advanced by learned counsel for Defendant No.1 in that regard. 12. Shri S.S. Chaudhary, learned counsel for defendant No. 1 also canvassed that the plaintiff and Gajarabai gifted land admeasuring 2 hectare 14 R. out of Gat No.462, and 77 R. from Gat No.465 to Mirabai, although they had no right to so gift the lands, and submitted that the said aspect is also required to be considered in the present second appeal. 7 However, learned trial judge, in his judgment, has categorically observed in that respect that Defendant No.1 has not challenged the said gift deed executed by plaintiff and Gajarabai and, therefore also, there is no substance in the grievance made by Defendant No.1. 13. In the circumstances, no substantial question of law could be formulated and present second appeal bears no substance and, therefore, same fails, and hence, same stands dismissed. 14. Consequently, Civil Application No.586/2008 for stay, stands disposed of, accordingly. (SHRIHARI P. DAVARE, J.) pnd/sa20.08.