1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL ST. NO. 891 OF 2003 Sambhu s/o Genba Gangarde & another .. APPELLANTS VERSUS Kondabai Babasaheb Ghalme & others .. RESPONDENTS Shri Mukul Kulkarni, Advocate holding for Shri M.Y. Deshmukh, Advocate for the appellants. Shri N.V. Gaware, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. PER COURT : 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff who is daughter of one Genba and Kondabai, original owner of the property, had presented suit against defendants claiming share in the property. According to plaintiff, on demise of Genba, defendant nos. 1 to 3 effected partition amongst themselves. However, they have excluded plaintiff and did not allotte any share in her favour. Plaintiff thus claims her entitlement to the property left behind by Genba as his daughter. It is specifically stated in the plaint that the suit property has already fallen to 2 the share of Genba. Defendant nos. 7 to 11 being the brothers of deceased Genba, plaintiff is not claiming any relief in respect of entitlement of the share admissible to them, and, as such, they are made formal party. Contentions raised in the plaint were not controverted by defendants as none of the defendants contested the suit. 3 Trial court granted decree in favour of the plaintiff. Judgment and decree passed by the trial court was subjected to challenge at the instance of defendant nos. 1 to 3 in Regular Civil Appeal no. 246/1999 which came to be heard and disposed of by 3 rd Adhoc Additional District Jude, Ahmednagar who was p leased to dismiss the same by judgment dt. 22-1-2002. 4 I have heard arguments advanced by learned counsel for the respective parties. It is strenuously contended by learned counsel for the appellant that plaintiff being a daughter is not entitled to claim partition and separate share in the ancestral property. It is to be noted that plaintiff in the plaint itself has contended that after demise of Genba partition was effected amongst his remaining sharers and she has been excluded and has not been allotted any share in the property and, as such, she has presented 3 the suit. Thus, plaintiff is claiming her entitlement in the property which has already been partitioned on demise of Genba amongst the other sharers. It is to be noted that the plaintiff has claimed entitlement to her share in the property which was owned and possessed by deceased Genba. Property allotted to Genba is subject matter of partition in the suit presented by the plaintiff. Plaintiff has specifically stated in paragraph no. 4 of the plaint that she is not claiming her entitlement in respect of share allotted to defendant nos. 7 to 11 and that they are impleaded in the suit as formal party. Absence of some of them i.e. defendant nos. 7 and 11 will therefore have no effect on her entitlement. Apart from this aspect, contentions raised in the plaint are not at all controverted by the defendants. In this situation, the courts below have not committed any error in granting decree in favour of the plaintiff. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sast891.03.odt FARAD CONTINUATION SHEET NO.__________ 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 731 OF 2003 IN SECOND APPEAL ST. NO. 891 OF 2003 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. 1 This is an application seeking condonation of delay of 171 days occurred in presenting the second appeal. 2 Heard. For the reasons stated in the application, application deserves to be allowed. Delay occurred in presenting the second appeal stands condoned. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast891.03.odt FARAD CONTINUATION SHEET NO.__________ 5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 2522 OF 2OO3 IN SECOND APPEAL ST. NO. 891 OF 2003 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. 1 This is an application seeking condonation of delay in filing the application for bringing legal heirs of respondent nos. 6 to 9 on record and for deleting the name of respondent no. 5. 2 Heard. For the reasons stated in the application, application deserves to be allowed. Delay occurred in filing application for bringing legal heirs o respondent nos. 6 to 9 on record stands condoned. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast891.03.odt FARAD CONTINUATION SHEET NO.__________ 6 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 732 OF 2003 IN SECOND APPEAL ST. NO. 891 OF 2003 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. 1 In view of dismissal of the appeal, civil application does not survive and stands disposed of. ( R. M. BORDE, J.) dyb / office /sast891.03.odt FARAD CONTINUATION SHEET NO.__________ 7 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 3922 OF 2004 WITH CIVIL APPLICATION ST. NO. IN SECOND APPEAL ST. NO. 891 OF 2003 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. 1 These are the applications for condonation of delay of 892 days occurred in filing application for setting aside abatement order passed on 11-8-2000 as well as for setting aside abatement order passed on 11-8-2000. 2 Heard. For the reasons stated in the applications, applications deserve to be allowed. Delay of 892 days occurred in filing application for setting aside abatement order passed on 11-8-2000 is condoned. Abatement order passed by this court on 11-8-2000 is recalled. Appeal be restored to its original number. Civil applications stand disposed of. ( R. M. BORDE, J.) dyb / office /sast891.03.odt FARAD CONTINUATION SHEET NO.__________ 8 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 2523 of 2003 IN SECOND APPEAL ST.NO. 891 OF 2003 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. 1 This is an application for bringing on record legal representatives of deceased respondent nos. 6 to 9. 2 Heard. For the reasons stated in the application, application deserves to be allowed. Legal representatives of deceased respondent nos. 6 to 9 be taken on record. Record be amended accordingly. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast891.03.odt 9