1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.403 OF 2009 WITH CIVIL APPLICATION NO.1366 OF 2009 Sau.Anandibai Damodar Gaikwad & Anr. .. Appellants V/s. Shri Pandurang Yashwant Gawali & Ors. .. Respondents Mr.Mohan B.Jadhav for the Appellants. Mr.Rameshwar Gite for Respondent Nos. 1 to 3. CORAM: S.J.KATHAWALLA J. DATE : 12 th NOVEMBER, 2009. P.C. This Second Appeal is filed by the Appellants against the order passed by the District Judge, Nashik in Civil Appeal No.14 of 2007. By the said order the Appeal filed by the Appellants is dismissed. 2. The Appellants are the original Defendants in 2 Regular Civil Suit No.13 of 2004 filed before the IInd Joint Civil Judge, J.D.Nashik by the Respondents herein (Plaintiff therein). The Trial Court had decreed the suit for partition by its Judgment dated 29th November, 2006. In the Appeal preferred therefrom by the Appellants herein, it was contended by the Appellants herein that the suit was wrongly decreed by the Trial Court since Mathurabai wife of Devram one of the sons of the deceased Bhika was not joined as a party to the suit and hence the suit was bad for non-joinder of a necessary party. 3. The Lower Appellate Court in its order in Appeal dated 25th November, 2008 has interalia dealt with the said contention of the Appellants as set out hereunder : “...Dealing with the contentions that all the necessary parties have not been made parties in this suit filed for partition, more specifically it was alleged from the side of the Defendants that Mathurabai has not been made party though she is alive and available. To that extent, it has been brought on record and discussion is made by the Ld. Trial Court that with the 3 remarriage and second marriage of Mathurabai, she is not now entitled to claim any share and to that extent, when specific suggestions were made in the cross-examination of the defendant, they were not specifically denied. Thereby it is clear that even though this contention was raised by the defendants in their W.S. at a subsequent stage while leading oral evidence, they have given complete gobye to it. So, rightly the Ld. Trial Court has dealt with rival contentions and answered the same after due and proper care and consideration of the oral and documentary evidence led”. 3. Though, no question of law has been framed by the Appellants in the present Second Appeal, this Court has allowed the Appellants to point out what according to them is the question of law on which they have preferred the present Second Appeal. The learned Advocate for the Appellants submitted that the only question of law involved is that the Lower Appellate Court ought to have set aside the decree passed by the Trial Court on the ground that Mathurabai, though, being a necessary party was not joined as a party 4 Respondent to the suit. In view of the aforestated reasoning of the Trial Court, confirmed by the First Appellate Court as regards the remarriage of the said Mathurabai, in my view, and I find no merits in the submission that this Court should raise a question of law as suggested by the learned Advocate appearing for the Appellants. 3. In view thereof, the Second Appeal is dismissed. 4. In view of the order of dismissal of the above Second Appeal, Civil Application No.1366 of 2009 does not survive and is, accordingly, disposed of. (S.J.KATHAWALLA J.)