1 (SA731.03) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.731 OF 2003 Shri Nagesh Bandu Potdar & Anr. ... Appellants. V/s Prabhavati Bapusaheb Kumbhojkar ... Respondent. None for the appellants. Mr. Dilip Bodake for respondent. CORAM: V. M. KANADE, J. DATE : 9th June, 2011 P.C.:- 1. None appears on behalf of the appellants. Even on the last date, neither the appellants nor their counsel were present. However, Counsel for respondent was present on the last date also. It appears that the appellants are not keen in pursuing this second appeal. For the sake of convenience parties shall be referred to as “Plaintiff” and “Defendants. 2. The learned Counsel for Respondent/Plaintiff has taken me through the judgment and order of both the courts 2 (SA731.03) below. The substantial question of law as framed by this court at the time of admission of this second appeal is as under:- “Whether the suit for partition is maintainable without joining all co- sharers as party defendants.” 3. In the present case, genealogy is as under:- SHIVRAM POTDAR ! _____________________________ ! ! ! BANDU RAGHUNATH MANOHAR ! ______!_____________ ! ! RUKMINI ANUSAYA (1st wife) (2nd wife) ! (Deft No.2) ! ! PRABHAVATI SON NAGESH (Plaintiff) (Defendant No.1) 4. Plaintiff in her plaint has specifically pleaded that Shivram Potdar had three sons viz. Bandu, Raghunath and Manohar and there was partition between the three brothers and, as such, since partition was claimed in respect of property of Bandu, Rghunath & Manohar were not necessary parties. The Trial Court has recorded a finding of fact that no evidence was led by the Defendants to show that there 3 (SA731.03) was no partition between Bandu, Raghunath and Manohar and accepted the contention of Plaintiff regarding partition between the three brothers. This finding is further confirmed by the lower Appellate Court. Both the Courts below have also taken into consideration another circumstance that Bandu, father of Plaintiff No.1, had filed tenancy proceedings against the tenant on his own and not alongwith other brothers Raghunath and Manohar. In view of the concurrent finding of fact recorded by both the Courts below, the substantial question of law, as framed by this Court, will have to be answered that this question does not arise in the present case since there was already a partition between the other co-parceners and, therefore, Raghunath and Manohar were not necessary parties. 5. In my view, no substantial question of law is raised in this second appeal. There is concurrent finding of fact recorded by both the Courts below and, therefore, it will not be possible for this Court to interfere with the said finding of fact while exercising jurisdiction under section 100 of the Civil Procedure Code. Hence, second appeal is dismissed. Interim order, if any, stands vacated. (V.M. KANADE, J.) 4 (SA731.03)