IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 288 OF 2005 WITH CIVIL APPLICATION No. 541 OF 2005 Shamrao Shankarrao Jadhav ... Appellant Vs Anjalibai T. Pawar & Ors. ... Respondents Mr. Umesh Mankapure, for the Appellant. None for the Respondents. CORAM: A. P. DESHPANDE, J. DATED: FEBRUARY 3, 2009. P.C.: ---- . The plaintiff Anjalibai instituted a suit against the original defendnt who happenes to be her real brother so also against widow of one of her brothers, for partition and separate possession of her share, claiming that the suit property is a joint family property and the property has not been partitioned. Accepting the case pleaded by the defendant that the partition had already taken place in the year 1976, the Courts below concluded that the suit property was a joint family property and was already subjected to the partition in the year 1976. Once partition is accepted, then obviously, plaintiff was entitled to claim a share in the property. It is - 2 - not in dispute that a decree for partition and separate possession was passed in favour of the plaintiff, in regard to the agricultural land; so also dwelling house. The learned counsel for the appellant has fairly submitted that the present appeal pertains to the share of the plaintiff in the dwelling house and she has already been given share in the agricultural lands, by the Courts below, which finding is not challenged in the appeal. Dealing with the circumstances in which Section 23 of the Hindu Succession Act would operate, the Courts below have observed that the parties are in separate occupation of the portions in the house. It is further held that a portion of the house is let out to a tenant and in this view of the matter, the Courts below have held that Section 23 of Hindu Succession Act does not act as an impediment in granting share in favour of the plaintiff. Perused the judgment. I do not see any illegality warranting any interference in the second appeal. 2. The learned counsel for the appellant has contended that as the suit filed by the plaintiff was for partition, the moment the Court holds that the partition has been effected, as contended by the defendant, the Court cannot proceed to grant share in - 3 - favour of the plaintiff. This submission is misconceived. After accepting the case putforth by the defendant, the claim for possession can always be decreed, though not for partition. In the result, there being no merit in the appeal, the same is summarily dismissed. 3. In view of dismissal of second appeal, Civil Application No. 541 of 2005 is disposed of being rendered infructuous. Sd/- [ A. P. DESHPANDE, J.]