( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 203 OF 2010 Manohar Dhondiram Gomde, Age: 72 years, Occ: Agri., R/o. Dighol Amba Tq. Kaij, Dist. Beed, & Ors. .. Appellants Versus Dharmaraj Vishnu Gomde, R/o. Dighol Amba, Tq. Kaij, Dist. Beed & Ors. .. Respondents WITH CIVIL APPLICATION NO.4294 OF 2010 ... Mr. Vivek Bhavthankar, Advocate for the appellants. Mr. H.D. Deshmukh, Advocate for respondent No.1. ... CORAM : P.R. BORKAR,J. DATED : 16.04.2010 P.C. :- Heard Mr. Vivek Bhavthankar, Advocate for the appellants and Mr. H.D. Deshmukh, Advocate for respondent No.1. ( 2 ) 2. Second appeal is directed against the judgment and decree passed by the Joint Civil Judge, J.D. Kaij, District Beed in R.C.S. No.330/1992 decided on 19-07-1997 whereby the present appellants were directed to hand over the possession of Survey No. 45 to the extent of 5 A 34 R situated at Digholamba Tq. Kaij Dist. Beed, to the plaintiff, which judgment and decree is further confirmed by the Adhoc District Judge-2 Ambajogai District Beed in R.C.A. No. 113/1997 decided on 05-11-2009. 3. Brief facts giving rise to this appeal may be stated as under : Respondent No.1 Dharmaraj is original plaintiff. It is his case that Survey No. 45 situated at Dighol Amba was ancestral property. Respondent Nos. 2 and 3 are parents of respondent No.1. Respondent No. 1 had filed suit for partition against respondent Nos. 2 and 3 and the said suit was compromised, and as a result of compromise decree, 5 A 34 G land out of Survey No. 45 was allotted to the share of respondent No.1 and as such, it was his separate property. It is further stated that even though there was no legal ( 3 ) necessity, respondent Nos. 2 and 3 sold the said land belonging to respondent No.1, to the appellants. The sale was without legal necessity and therefore,not binding on respondent No.1, and hence, the suit was filed for possession. Though in the trial Court, there was no prayer for setting aside sale deed, prayer was made for adding the same in first appeal and the First Appellate Court gave declaration of setting aside sale deeds, as it was not for legal necessity. 4. Mr. Vivek Bhavthankar, Advocate argued two points. According to him, birth date of plaintiff as per school leaving certificate is 06-06-1976, so he would have completed 18 years on 06-06-1994. Suit is filed on 13-11-1992. However, both the Courts have concurrently held that birth date of the plaintiff is 01-08-1973 and as such, he attained majority in 1991 and therefore, it was a suit filed after attaining majority. 5. In my opinion, date of birth is necessarily a question of fact and no legal question arises. The school leaving certificate was placed before the trial Court and the first ( 4 ) Appellate Court and same was considered. Legal infirmity of not seeking declaration regarding the sale deed was also cured by the First Appellate Court. The second question arises before this Court is regarding the legal necessity. There is concurrent finding of fact so far as this part is concerned. Mr. H.D. Deshmukh, Advocate for respondent No.1 states that after allotment of the suit land to the share of minor, as a result of the decree in compromised suit, it cannot be said that the suit property was ancestral property or joint family property, it would be separate property. There cannot be dispute about the same. It would become minor's property and under the circumstances, question is whether the parents could have sold it. The trial Court has framed Issue No.10A and has exhaustively considered the issue of legal necessity and discharge of burden of the said issue by the defendants in Para-16 and 17 of the judgment. It is argued by Mr. Vivek Bhavthankar, Advocate of the appellants that there is no specific point raised in the District Court regarding legal necessity. However, Mr. H.D. Deshmukh, Advocate of respondent No.1 states that there is necessary discussion in Para-26 of the District Court Judgment. This Court has considered Para-16 and 17 of the trial Court ( 5 ) judgment for holding that the defendants have failed to prove that there was legal necessity. The evidence of witness Vijaykumar Banale, who was Secretary of the society, was disbelieved for proper reasons given in Para-16 of the lower Court's judgment. 6. After giving due consideration to all aspects of the matter, in my opinion, this is not a case, which raises substantial question of law so as to admit the second appeal. The second appeal is dismissed. 7. In view of the dismissal of second appeal, Civil Application No.4294 of 2010 does not survive and hence, is disposed of as such. [P.R. BORKAR,J.] sut/APR10/sa203.10