1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIAL APPELLATE JURISDICTION SECOND APPEAL NO. 208 OF 2004 WITH CIVIL APPLICATION NO. 1960 OF 2005 Janardhan Bapu Gadhave........Appellant versus Smt. Tulsabai w/o Santu Ugale & ors......... Respondents. Mr. R,M. Hardas i/b. P.N. Joshi for the Appellant Mr. Swapnil Kulkarni i/b M/s.Utangale & Co. for the Respondents. CORAM: R. V. MORE, J. DATED : 06th OCTOBER, 2008. P.C.: 1. Heard Mr. Hardas the learned counsel for the appellant and Mr. Kulkarni for the respondent. The appellant is the original defendant no.1. Respondent no.1/Plaintiff's suit for partition and separate possession was dismissed by the trial court. The lower appellate court, at the instance of respondents reversed the trial court's decree and for partition and have been granted partition in the suit property. 2. The trial court held that the respondent nos.1 and 2/Plaintiffs are entitled for 24/100 share each in the suit property except Gat no. 570, however dismissed the suit for non-joinder 2 of legal heirs of deceased i.e. Defendant no.2. In the lower appellate court, the respondent nos. 1 and 2 filed an application at Exh.5 under Order 6 Rule 17 of Civil Procedure Code for amendment in plaint for bringing the legal heirs of deceased defendant no.2 Popat on record. This application was allowed by the lower appellate court after hearing both the sides. Thereafter respondent nos. 1 and 2/plaintiff' s appealwas allowed, and consequently the suit came to be decreed. 3. Mr. Hardas the learned counsel for the appellant submitted that the course adopted by the lower appellate court is not in accordance with the law. He further submitted that the trial court dismissed the respondent nos.1 and 2' s suit on the ground of non-joinder of legal heirs of deceased Popat and therefore lower appellate court should not have allowed respondent nos. 1 and 2 application under Order 6 Rule 17 of CPC. He also relied upon a judgment of the learned Single Judge of this court in Jayalaxmi Janardhan Walawalkar & ors. Vs. Lilachand Laxmichand Kapasi and ors reported in 1998(3) Mh.L.J. 618. 4. Mr. Hardas does not dispute the fact that the respondent nos.1 and 2 are entitled for 24/100 share each in the suit property. In my opinion in a partition suit in order to do justice to the parties, the court can issue certain directions to the parties, so that each party to the suit get his/her legal share in the suit property. In my considered opinion, the lower appellate court 3 has done substantial justice and therefore I am not inclined to interfere in the impugned judgment and order. So far as the judgment of the learned Single Judge of this Court in Jayalaxmi's case (supra) is concerned, the same may not be applicable in this case in as much as the facts are totally different. The present proceeding arises out of suit for partition and the proceedings before the learned Single Judge in Jaylaxmi's case (supra) arises out of ejectment suit. I do not find any reason to interfere in the second appeal as no substantial question of law arises for consideration and hence the same is dismissed. 5. In view of the dismissal of Second Appeal, the Civil Application no. 1960/05 does not survive and the same is therefore dismissed. ( R.V. MORE, J.)