1 SA 460.2008 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 460 OF 2008 _____________________________________________________________ Office Notes, Office | Memoranda of Coram, Court's or Judge's orders appearances, Court's | orders or directions and Registrar's orders | _____________________________________________________________ Mrs. S.D.Tambat - Dhumal, Advocate for the appellant. ............................... CORAM : S.V.GANGAPURWALA, J. DATE : 21/12/2010 PER COURT : 1. This is defendant’s Second Appeal. 2. The plaintiff had filed Suit for partition and separate possession, which came to be dismissed. The lower appellate Court decreed the Suit. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mrs. Tambat, learned counsel for the appellant strenuously contended that the Suit itself is bad in law as the daughters of Khemchand were not made parties to the Suit. In absence of them, the Suit for partition and separate possession could not have been decreed. The learned counsel further contended that the plaintiff has not included the property 2 SA 460.2008 which was in his possession in a Suit for partition. In absence of inclusion of all properties, the Suit itself was not tenable. The learned counsel submits that this aspect has not been considered by the Courts below. 4. The present appellant had nowhere raised a pleading that deceased Khemchand has a daughter and she also had share in the joint family property. When there was no pleading to that effect, the Courts could not have framed issue in that regard nor before the appellate Court also the same was agitated. In light of the fact that there is no pleading to that effect nor the same was point for consideration before the lower appellate Court or the trial Court, the same can not be considered in the Second Appeal as the Second Appeal would be restricted to the pleadings and the issues determined by the Courts below. Regarding the second submission that the house No. 6369 not being included in the suit property, the lower appellate Court has discussed in that regard and has come to the conclusion that there is nothing to show that the said property has status of joint family property. In absence of any proof of property being joint family property, the said objection can not be entertained. There is presumption of joint family, but there is no presumption that the property held by the particular person is a joint family property. 3 SA 460.2008 5. More over, the present appellants had come up with the theory that the partition was already effected two (2) years prior to 1977. The Courts below have disbelieved the theory put-forth by the appellant. 6. In light of the above, the Second Appeal does not involve any substantial question of law, is dismissed, however with no order as to costs. 7. In view of disposal of Second Appeal, Civil Application does not survive and is accordingly disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/SA 460.2008