1 86.sa267.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 267 OF 2011 WITH CIVIL APPLICATION NO. 715 OF 2011 IN SECOND APPEAL NO. 267 OF 2011 Rajaram Bala Patil. ....Appellant. Vs. Sarjerao Bala Patil & ors. ....Respondents. Mr. Bhushan Walimbe i/b. Ms. Preeti Walimbe, Advocate for Appellant. CORAM:- GIRISH GODBOLE, J DATED:- OCTOBER 3, 2011 P.C. 1. Heard Mr. Walimbe, Advocate for the Appellant. Respondent No. 1 had filed R.C.S. No. 142 of 1988 for partition and separate possession, which was opposed by the Appellant by filing Written Statement Exh. 20 and additional Written Statement Exh. 40. Defence of prior partition in the year 1961 was raised as also a defence was raised that the suit property Gat No. 17 was purchased from his exclusive income and that the property is not joint family property. The defence of non-joinder of necessary party was also raised in paragraph-13 of the 2 86.sa267.11 Written Statement and from the said Written Statement it appears that it was contended that Mrs. Chhaya Patil wife of Plaintiff was also required to be impleaded as party. No defence was raised that there are other sisters of Plaintiff, Defendant No.1 and deceased Bhimrao nor any particulars regarding their names or dates of marriages etc. were given. 2. Learned Joint C.J.J.D decreed the R.C.S No. 142 of 1988 and awarded decree for partition of 1/3 share of the Plaintiff. Aggrieved by this Decree, the Original Defendant No. 1 filed Regular Civil Appeal No. 447 of 1997 in the District Court at Sangli and perusal of the memo of Appeal shows that the Appeal was essentially focused on the property bearing Gat No. 17 and other property bearing Gat No. 20 standing in the name of the wife of the Plaintiff. By the impugned Judgment and Order dated 17/7/2010 the learned District Judge -1 Islampur has dismissed the said Regular Civil Appeal No. 447 of 1997 which was renumbered as Regular Civil Appeeal No. 781 of 1999. 3. Mr. Walimbe, apart from the other contentions regarding self acquisition of Gat No. 17 also sought to contend that in view of the admission of the Plaintiff in the cross-examination that he had one sister 3 86.sa267.11 and two step-sisters, said sisters were necessary parties in the suit for partition. It was also contended that while the share of the Plaintiff was prescribed, the shares of Defendants were not defined and hence the second Appeal should be admitted. 4. I have considered all the 3 submissions. In so far as non-joinder of necessary parties is concerned, the defence as raised in the Written Statement about non-joinder of the wife of the Plaintiff is concerned, the same has been considered by the Trial Court while discussing the Issue No. 4 and a finding of fact has been recorded that certain properties which were not included in the suit earlier have been added. In so far as the defence that block No. 120 was also required to be added in the hotch potch and the wife of the Plaintiff is required to be impleded is concerned the finding of fact has been recorded in paragraph-14 of the Judgment. No defence regarding non-impleadment of the sister and step sisters of the Plaintiff and Defendant No.1 had been raised and stray admission in the cross-examination cannot be allowed to be relied upon for the first time in the High Court in the Second Appeal. It was possible for the Appellant to lead evidence before the Trial Court by indicating the exact dates of marriages of the said sisters and though the Appellant has 4 86.sa267.11 stepped in the witness box he has stated that Bhimrao had died about 30 years ago but there is absolutely no statement regarding the names of the sisters or the dates of their marriages or any other particulars. It is obvious that if the said sisters have any right in the property either on account of intestate or testamentary succession, the same will not be affected and the judgments of the Trial Court and the Appellate Court will not bind them in case they are successful in establishing that they have independent right. However, present Appellant having failed to give any particulars about the names of the sisters etc. cannot be allowed to agitate such a ground for the first time in the Second Appeal when this ground is not raised before the Trial Court or District Court but is sought to be agitated for the first time by raising ground No. 6 in the memo of Second Appeal. 5. The second submission regarding the Trial Court not having defined the shares of the Defendants is concerned, does not also raise any question of law. The genealogy is admitted. Bhimrao through whom the Defendant Nos. 3 to 5 claim was admittedly the real brother of Appellant, Defendant No. 1 and Respondent No.1/Plaintiff. The Court has granted 1/3 share and a preliminary Decree has been passed. If the 5 86.sa267.11 Defendants wanted their share to be separated, nothing prevented them from applying to the Trial Court for getting their share separated and even now they can always approach the Trial Court by paying necessary court fees and seeking separation of their shares as it is well settled that more than one preliminary Decrees can be passed in a Suit, particularly, when the suit must continue for the purpose of drawing final decree there is no legal impediment for the Appellant and Defendant Nos. 3 to 5 for making such an application before the Trial Court in the same Suit and the same will have to be considered by the Trial Court on its own merits. 6. In so far as their submission regarding self acquisition of Gat No. 170 is concerned, finding recorded by the Trial Court and the Appellate Court are pure finding of fact and do not give rise to any question of law. Hence, Second Appeal is dismissed with the above clarification. 7. In view of dismissal of the Second Appeal, nothing survives in the Civil Application, the same is also disposed off accordingly. (G.S.GODBOLE, J)