1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.127 OF 2007 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 27.04.2011. 1. Heard. 2. This is plaintiff's Second Appeal. The plaintiff had filed suit for partition and separate possession. The trial Court partly decreed the suit granting 1/3rd share in Gat No.48/1 and Gat No.48/2. Aggrieved thereby, the plaintiff filed appeal before the District Court. Even the defendants filed cross-objection. The District Court partly allowed the appeal and so also the cross-objection and granted share to the plaintiff in Gat Nos.48/1, 48/2, 134 and house property No.51 but negatived the claim in respect of Gat Nos.70, 71, 99 and 48/3. The reasoning given by 2 the Court in negativing the claim of the appellant in respect of the properties bearing Gat Nos.70,71 and 99 are erroneous and not sustainable. The said properties are ancestral prop0erties. Just because by compromise decree, the defendant No.1 gave the said property to the defendant No. 2, the same can not bind the plaintiff. The plaintiff was not party to the said compromise and as such he did not challenge the said compromise. According to the learned counsel if the Court holds the said properties to be ancestral properties then the plaintiff inherently held a right in the said property being a coparcener. 3. Per contra Mr.Deshmukh, learned counsel for the Respondent NO.1 submits that in fact, the suit itself was not maintainable as earlier the plaintiff himself had filed a suit for partition and separate possession which was dismissed on 30.9.1986. The compromise decree between the defendant No.1 and defendant No.2 is of the year 1988. The same is not challenged and the present suit is filed again for partition in the year 1991. According to the learned counsel, the defendant 3 No.2 had a pre-existing right of maintenance and pursuant to the said right, the said lands were allotted to the defendant No.2 and the same has rightly not been granted to the plaintiff. 4. With the assistance of the learned counsels, I have gone through the judgments. The properties in question i.e. Gat Nos.70, 71 and 99 were allotted to the defendant No.2 who is the mother of defendant No.1 and grand mother of plaintiff. The defendant No.2 had a pre-existing right of maintenance against defendant No.1 and for enforcing her right had filed a suit for maintenance. In the same, the said properties i.e. Gat Nos.70, 71 and 99 were allotted to the defendant No.2. The right was created in the defendant Bukabai, in the said properties by virtue of the said compromise decree. It was imperative for the plaintiff to challenge the said decree also. The said properties were allotted to Bukabai in lieu of maintenance. When a property is allotted in lieu of maintenance that would become a separate property and on this count also it was necessary for the plaintiff to 4 challenge the said decree. The same has not been done. On contrary, the conduct of the plaintiff shows that initially the plaintiff had filed a suit for partition which came to be dismissed in default in the year 1986. The compromise decree is of the year 1988. The plaintiff kept quiet and thereafter in the year 1991 filed the instant suit that too without challenging the said compromise. In view of these facts, the Courts below have properly considered the aspects of the matter. 5. The Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.27.04.2011. asp/office/sa127.07 5