1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.519 OF 1999. Dhondiram s/o Asaram Warkad - APPELLANT VERSUS 1) Ratan s/o Raghunath Natkar and others. - RESPONDENTS ***** Mr.MS Taur, Adv. h/for Mr. NK Kakde,Advocate for Appellant; Mr.AS Bajaj, Adv. for Resp.Nos. 1,2, 3 & 5. ----- CORAM : K.U.CHANDIWAL, J. DATE : 18th March, 2010. PER COURT : 1) Heard learned Counsel for the parties. 2) The Judgment and Decree dated 29.3.1994 of III Joint Civil Judge, Junior Division, Aurangabad, was taken before the Appellate court and the Appellate Court, on analysis of the events and documents in Regular Civil Appeal No. 222/1994, found entitlement of the plaintiffs to seek partition in relation to the property including the land Gut No.49, which was sold to 2 appellant-Dhondiram, and the learned first Appellate Court, on analysis of the legal position, has passed the following order : “(1) The appeal is allowed in part with proportionate costs. (2) The Judgment and decree of the trial court is set aside and replaced as under : The suit is decreed in part with proportionate costs. The sale deed of defendant Dhondiram s/o Asaram Warkad is declared as null to the extent of share of plaintiffs and other defendants except Keshav. Each plaintiffs shall be entitled to get 2/9th share in the suit land Gat No. 49 and at No. 186 on partition with separate possession. Defendants no. 1, 2 and 3 each shall be entitled to 2/9th share whereas defendant nos. 4 an 5 each shall be entitled to 1/18th share in the suit lands on partition with separate possession on making payment of requisite court fees. Decree shall be sent for 3 effecting actual partition and delivering separate possession as per Section 54 of the C.P.C. to the Collector, Aurangabad. (3) Decree be drawn up accordingly. (4) R & and P be sent to the trial Court.” 3) The leaned Counsel for appellant canvassed, that there was Cross-objection of the appellant and it has not been considered by the first Appellate Court, and hence it is a substantial question of law. I do not agree to this position, basically the learned first Appellate court has considered the Cross- objection, and in paragraph 26 of the judgment has observed, the Cross-objection does not have any legal force and has also added, the plaintiffs would not get a decree for partition and possession of the suit house, however, they would be entitled to get share in the land Gut No.186, and consequently modified the decree. The observation of the learned first Appellate Court certainly illustrated dealing with the cross-objection, which lacked merit. The operative part of the order shows, care is taken while effecting the decree for partition, it is to the extent of share of the plaintiffs except 4 Keshav, i.e. vendor of the present appellant – Dhondiram. The decree is sent for effecting partition in terms of Section 54 of CPC to the Collector, Aurangabad. The grievance, if any, to a particular portion, in possession of the appellant herein, can well be entertained by the Collector, while causing such inquiry under the law. The Second Appeal lacks merit, no interference, dismissed. No costs. CA dismissed. (K.U.CHANDIWAL) JUDGE bdv/sa519.99