1 Second Appeal No. 712.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.712 OF 2010 Udhaybhan S/o Baburao Jadhav .. APPELLANT VERSUS Kishor S/o Hanumant Jadhav & others ...RESPONDENTS ... Shri V.S. Bedre & A.S. Kadam, Advocates for the appellant Shri B.N. Patil, Advocate for respondent Nos. 1 to 3 CORAM : S.V. GANGAPURWALA, J. DATE : 6th December, 2010. PER COURT : This is defendant No. 3’s Second Appeal. The plaintiffs had filed a suit for partition and separate possession on the ground that the suit property is the ancestral property. The trial Court decreed the suit. Defendant No. 3 preferred an appeal. The appellate Court also dismissed the appeal. The defendant No. 3 has assailed the Judgment and Decree in the present Second Appeal. 2 Second Appeal No. 712.10 2. Shri Bedre, learned Counsel for the appellant strenuously contended that the sale- deed is executed by defendant No. 1 in favour of defendant No. 2 in the year 1993, thereafter, the defendant No. 2 had sold the said property vide sale-deed dated 30th May, 1996 to the present appellant. The plaintiffs for all these years did not take any action, and filed the suit in the year 1998, their inaction for such long period and the conduct does not entitle them for any relief. Shri Bedre, learned Counsel further contended that even the defendant No. 1 has stepped into the witness box he has confirmed the transaction entered with the defendant No. 2, he has also stated about the legal necessity. But the Courts below have not considered the same. According to the learned Counsel, the Courts below have led unnecessary emphasis on the two incidents of the year 1987 and 2000, that is not sufficient to prove that the defendant was addicted to bad vices. The incident of 2000 is only with regard to the issuance of show-cause notice, the act complained of is not proved and same cannot be taken into consideration. 3 Second Appeal No. 712.10 3. Per contra, Shri Patil learned counsel for the respondent submitted that both the Courts have concurrently held that the defendant No. 1 was addicted to vices. The said finding is finding of fact, there was no perversity in the appreciation of evidence, and the same cannot be a subject matter in the Second Appeal. 4. With the assistance of learned Counsel for the respective parties I have gone through the judgments passed by both the Courts below. 5. The suit is filed for partition and separate possession. The plaintiffs on the date of transaction were major, the defendant No. 1 did not have an exclusive right of ownership in the suit property. The plaintiffs cannot be deprived of their right to the property by the acts of commission on the part of defendant No. 1. The defendant No. 1 was addicted to vices is substantiated by the conviction inflicted by the Court on him, so also the memo issued to the defendant No. 1 by his employer. Both the 4 Second Appeal No. 712.10 incidents substantiate the said fact. Moreover, there was no evidence on record to show that the sale was for legal necessity. It is not proved by the defendants that the marriage of the daughter had taken place at the relevant time. In absence of legal necessity, even if it is assumed that the defendant No. 1 was Karta of the family, he could not have alienated the property to the extent of share of the plaintiffs. 6. In the result, the defendant No. 3 would be entitled only to the extent of the share of defendant No.3.The Second Appeal is dismissed being devoid of substantial question of law. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of accordingly. [S.V. GANGAPURWALA] JUDGE SDM* 712.10/61210