1 S.A.NO. 653/2009. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.653 OF 2009. 1. Sattar Khan S/o Rajekhan & others. ...Appellants. VERSUS 1. Fakir Khan S/o Rajekhan & others. ...Respondents. ... Mr.Mujtaba Gulam Mustafa,Advocate h/f Mr.Zia-Ul- Mustafa, Advocate for the appellants. ... CORAM: A.V.NIRGUDE,J. Date : 23rd September, 2009. COURT’S ORDER: 1. The appellants are challenging concurrent findings recorded by the Courts below. The respondents are the original plaintiffs. They sought partition of certain properties which according to them belonged to their father. They stated that the appellants who are step brothers denied partition to them. The appellants took up a stand that the respondents No.1 to 8 were not 2 S.A.NO. 653/2009. the legitimate sons of their father and that their father was not married to the respondent No.9 (original plaintiff No.9). 2. Both the Courts below held that the respondents have proved their case of legitimacy as well as the valid marriage between the original plaintiff No.9 and Rajekhan the father of the appellants. The Courts below held that the respondents were entitled to partition of only one piece of property which is a residential house. The Courts below rejected the respondents' case seeking partition in agricultural lands. 3. The learned Advocate appearing for the appellants brought to my notice that earlier to filing of this suit, his clients had filed a suit against the present respondents bearing Regular Civil Suit No.289/1976. He suggested that when the suit was filed, it was decided against the respondents (respondents No.1 to 3), there arose a cause of action for the present suit and since the present suit was not filed within three years, the present suit was barred by limitation. 4. In order to examine this aspect, I went through the written statement of the appellants. In the written statement, the appellants stated the reason why they filed suit RCS No.289/1976 3 S.A.NO. 653/2009. against the respondent Nos.1 to 3. They stated that there was a house property bearing house No. 337 in which the father of the appellants Rajekhan had installed a floor mill. They stated that after the death of Rajekhan, they continued the business of the floor mill and the respondents No.1 to 3 tried to create obstruction in such business. They, therefore, filed the suit RCS No.289/1976 for declaration and injunction in respect of house No.337 and the floor mill installed in it. The cause of action for that suit thus was an independent one and it belonged to the appellants. Apart from stating as to why the appellant No.1 had filed the suit RCS No. 289/1976 against the respondent Nos.1 to 3, the appellants did not say anything about it or it's effect on the cause of action for this suit. Because of this, the Courts below did not frame any issue or any point for consideration arising from the admitted circumstances between the parties about the filing and disposal of the suit RCS No.289/1976. In view of this, I do not see any substantial question of law arising between the parties due to the circumstance and circumstance of filing of the suit and it's disposal in favour of the appellants. 5. The learned Advocate appearing for the appellants contended that the suit was hopelessly barred by limitation and though this objection 4 S.A.NO. 653/2009. was not raised by the appellants in the written statement, it was necessary for the Courts below to examine this aspect of the case and should have decided that the suit was barred by limitation. The submission is not acceptable. 6. In this suit, the respondents in the plaint contended that there are several pieces of properties belonging to their father and they stated that they and the appellants occupied and possessed these pieces of properties jointly. They further admitted that their father Rajekhan had installed a floor mill in one of the house properties ( House No.337) during his life time. They stated that the house property as well as the floor mill belonged to their father and so they were entitled to share in it. But they admitted further that in 1976 i.e. two years after Rajekhan's death, the appellant No.1 filed a suit against the respondent Nos. 1 to 3. He claimed that he is exclusive owner of the said house No.337 and the floor mill. They further admitted that though they opposed the suit contending that the property belonged to their late father, the trial Court held against them. They then stated that despite of the suit RCS No. 289/1976, they continued to occupy various suit lands and house properties along with the appellants. They stated that in 1984 they realised that the appellants were interested in 5 S.A.NO. 653/2009. denying their share in the suit property and so they filed this suit in 1985. According to them they sued within three years for declaration of the extent of their share and for possession. According to them, the suit was within limitation. As said above, they stated that the cause of action for suit arose some time in 1984. The appellants did not question the correctness or otherwise of this assertion of the respondents in the written statement. With the result, no issue of limitation was raised or framed or decided. Therefore, it would be futile for the appellants to raise such a question at this stage and it was also futile to raise such question at the stage of First Appeal. The First Appellate Court rightly ignored this aspect for the reasons mentioned above. 7. Mr.Mujtaba, the learned Advocate appearing for the appellants also discussed the aspect of correctness of the findings of fact recorded by the Courts below. But having gone through the judgments, I found that the Courts below recorded cogent reasons for recording the findings of fact. Both the Courts below concurrently found that the respondents No.1 to 8 were legitimate children of Rajekhan and that Rajekhan was married to the respondent No.9. I am not inclined to reexamine the correctness of these findings at this stage. The appeal should therefore fail. 6 S.A.NO. 653/2009. Appeal stands dismissed. 8. In view of this, Civil Application No. 9717/2009 does not survive. It stands dismissed. (A.V.NIRGUDE,J.) lkp