1 SA 405.2006 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 405 OF 2006 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. K.J.Ghute Patil, Advocate for the appellant. ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 15/12/2010 PER COURT : 1. This is defendant no. 2’s Second Appeal. 2. Present respondent no. 1 filed Suit for partition and separate possession, which came to be decreed and the properties sold by defendant nos. 1 to 3 and defendant nos. 7 and 8 were allotted to the share of defendant nos. 1 to 3. Defendant no. 2 challenged the said Judgment and decree. The said Appeal filed by the present appellant was dismissed. The present appellant assailed the said Judgment in the present Appeal. 3. Mr. K.J.Ghute Patil, learned counsel for the appellant submits that the Court below has not 2 SA 405.2006 properly considered the case. Even the trial Court has come to the conclusion that the sale deed executed in favour of defendant nos. 7 and 8 was not to deprive the share of the plaintiff. But, still has passed the decree, that the same would not be binding on the share of the plaintiff and defendant no. 4 and the same would be tagged to the share of defendant nos. 1 to 3, 5 and 6. This part of the decree is totally erroneous. Even the other evidence has not been considered by the Court below. The said property was sold for legal necessity. The lower appellate Court has not addressed on this aspect at all. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. The trial Court has nowhere observed that the said sale was for legal necessity. For adjusting the equity, the property sold to defendant nos. 7 and 8 was allotted to defendant nos. 1 to 3, 5 and 6. The present appellant before the lower appellate Court did not raise this ground nor has made any submission in this regard and had in fact accepted the said part of the Judgment. More over, there is nothing to show that the sale was for legal necessity. The purchaser has to plead and prove the same. There is nothing on record to substantiate and prove the case put-forth by the present appellant regarding the legal necessity. 6. In light of the above, the present Second 3 SA 405.2006 Appeal being devoid of substantial question of law, is dismissed, however, with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and as such is disposed of. [ S.V. GANGAPURWALA ] JUDGE knp/SA 405.2006