1 sa73.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 73 OF 2011 WITH CIVIL APPLICATION NO.2267 OF 2011 Uttam s/o Bahenaji Gadhekar, Age: 57 years, Occ: Agri., R/o. Barkatpur, Tq. Kannad, District Aurangabad and others. ...APPELLANTS VERSUS Lilabai w/o Punjaram Ghule, Age: 47 years, Occ: Agri., R/o. Tidka, Tq. Soygaon, District Aurangabad and others. ...RESPONDENTS ... Mr. B.M. Shinde, Advocate holding for Mr. V.P. Latange, Advocate for the appellants/ applicants. Mr. S.V. Advant, Advocate for respondent No.1. ... CORAM: S.S. SHINDE, J. DATE : 28TH NOVEMBER, 2011 PER COURT : . The second appeal takes exception to the judgment and order dated 26-08-2010 in Regular Civil Appeal No. 122 of 2008 passed by the 2 sa73.11 District Judge-4, Aurangabad. 2. Learned Counsel for the appellants would submit that, the properties for which the plaintiff filed suit for partition are not the ancestral properties. The trial Court as well as the lower appellate Court have held that those are not the ancestral properties, those properties came to Bhikabai from her parents. Therefore, according to the Counsel for the appellants, suit for partition in absence of pleadings that the said properties are ancestral properties, should not have been entertained by the lower appellate Court. The trial Court has rightly dismissed the suit. Learned Counsel further submits that, the appellants-original defendants have convinced the Court that the mutation entries are in their name. They are in possession of the properties during the life time of Bhikabai and they were placed in possession of the properties during the oral partition and therefore, after death of Bhikabai, it is not open for the plaintiff who is daughter 3 sa73.11 of Pundlik, son of Bhikabai to claim share in the property. Learned Counsel for the appellants invited my attention to the grounds taken in the appeal memo and findings recorded by the trial Court and contended that, this appeal deserves consideration. 3. On the other hand, learned Counsel for the respondent No.1 invited my attention to para-28 of the judgment of the lower appellate Court and submitted that, Lilabai and Sakhrabai who are respondents are shown in joint possession of the suit properties. Pundlik who is father of plaintiff Lilabai, is real brother of Uttam- appellant herein and therefore, the plaintiff is entitled to the share in properties. Accordingly, the lower appellate Court has taken a correct view and therefore, this Court may not interfere in the second appeal. 4. I have given due consideration to the rival submissions. I have carefully perused the 4 sa73.11 grounds/questions of law taken in the memorandum of appeal from Nos.1 to 13. 5. From perusal of the said grounds/questions of law, the thrust of the appellants is that, during the life time of Bhikabai, the revenue entries are effected in the name of the appellants and there was oral partition and therefore, after death of Bhikabai, the plaintiff cannot claim share in the property. Another ground taken is that the properties are not ancestral properties, however, those properties came in the name of Bhikabai from her parents, therefore, the suit for partition is not maintainable. 6. On careful perusal of inter-se relations between the parties, it is not in dispute that, Pundlik is real brother of Uttam who is one of the appellants herein. It is also not in dispute that, both Uttam and Pundlik are real sons of Bhikabai. Original plaintiff Lilabai is real 5 sa73.11 daughter of Pundlik. Therefore, if the appellant herein Uttam was entitled to the share in the property of Bhikabai, Pundlik (now deceased) was also entitled to the share in the property of Bhikabai. Though Bhikabai has received the said properties from her parents, both the sons Uttam and Pundlik would be entitled to the share of the properties of Bhikabai. The contention of the appellants that, mutation entries are in the name of the appellants and they are also in possession of the suit property, is devoid of any merits since the joint possession of the plaintiff and defendant No. 3 has been shown in the relevant record. Therefore, the plaintiff is also in joint possession of the suit properties. Therefore, taking over all view of the matter, none of the grounds/questions of law taken in the second appeal deserves consideration. 7. In the light of findings recorded by the lower appellate Court and in particular para-28, second appeal did not raise any questions of law 6 sa73.11 much less substantial questions of law for consideration. Second Appeal stands rejected. Consequently, Civil Application stands rejected. [S.S. SHINDE, J.] sut/NOV11