1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION SECOND APPEAL NO.187 OF 2009 Shamrao Ganpati Rasal : Appellant. Versus Shri Vishnu Ganpati Rasal & ors. : Respondents. Mr. Amit Sale for the Appellant. CORAM : C.L.PANGARKAR, J. DATE : 8th JANUARY 2010 P.C. 1. Heard the learned counsel for the Applellant. 2. This Second Appeal has been preferred by the Original Defendant No.2. The Original Plaintiff/Respondent No.1 Vishnu had instituted a suit for partition and separate possession of the suit property claiming that the suit property belongs to the joint family of the Plaintiff and the Defendants. The present Appellant and other defendants have contested the said suit contending that as far as the Suit Survey No.906 is concerned, it was the self acquired property of the Defendant No.2. It was the contention of the Appellant that the suit property was purchased by them as a tenant and entire consideration was paid by them. 2 3. The learned Judge of the trial Court after considering the evidence on record found that the Plaintiff was entitled to partition and separate possession of the suit property included in the said suit including the survey No.906. 4. An appeal was preferred before the District Court by the present Appellant which came to be dismissed and being aggrieved by the same, this Second Appeal has been filed by the Appellant/Original Defendant No.2. 5. The learned counsel for the Appellant submits before me that the Courts below were not correct in granting share to the Plaintiff/Respondent in the property Survey No.906. He submits that the suit property was purchased by the Defendant No.2 as a tenant and he had alone paid the purchase price. The Courts below have found that the original tenant was the father of the Plaintiff and the Defendants. He died and upon his death the property has devolved upon all the shares. Section 40 of the Tenancy Act makes it very clear that upon death of a tenant, the property goes to all the heirs. The Plaintiff is one of the shares and therefore, the Courts below have rightly held that the 3 Plaintiff/Respondent has a share in the suit property. The shares have been rightly determined by the Courts below. 6. The learned counsel for the Appellant submits before me that the Plaintiff did not show his willingness to continue the tenancy and the Courts below have not taken into consideration this aspect. The Courts below were not supposed to look into that aspect. It is for the Revnue Court. The decree as passed by the Courts below does not suffer from any infirmity. There is no perversity in the findings recorded by both the Courts below and in the appreciation of evidence. There is therefore no substantial question of law involved in this Second Appeal. Hence the Second Appeal is dismissed in limine. [C.L.PANGARKAR, J]