1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 700 OF 2010 Sopan Shivram Raskar .. APPELLANTS VERSUS Sanju Sopan Raskar & others ...RESPONDENTS ... Shri A.G. Dalal, Advocate for the appellant CORAM : S.V. GANGAPURWALA, J. DATE : 27th October, 2010. PER COURT : The Original defendant has filed the present Second Appeal. The respondent had filed suit for partition and separate possession in respect of the suit properties. The Trial Court decreed the suit and granted 3/8th share to the plaintiff in the suit property. The lower Appellate Court in appeal filed by the defendants enhanced the share of the plaintiff as 2/3rd. The defendants have assailed the said Judgment in the present Second Appeal. 2 2. Shri Dalal, learned Counsel for the appellant strenuously contended that in absence of any cross-objection from the plaintiff, the appellate Court could not have enhanced the share in favour of plaintiff. He further submitted that the earlier partition should have been taken into consideration. In maintenance proceedings, the plaintiff No. 2 has allotted two acres of land and it amounts to partition. 3. With the assistance of learned Counsel, I have gone through the Judgments. The property in question is an ancestral property. In such circumstances, the second wife or children born from second wife could not get any share in the suit property. The defendant No.1 and plaintiff Nos. 1 & 2 will have 1/3rd share each. In such circumstances, as far as calculation of share is concerned, no error is committed by the Court below. The second contention of Shri Dalal, learned Counsel for the appellant that in absence of cross-objection, the Appellate Court could not have changed the allocation of the shares granted by the Trial Court. The said 3 submission is not in consonance with the provisions of Section 107 read with Order 41 Rule 33 (Bombay Amendment) of the Civil Procedure Code. The appeal is continuation of the suit, the Appellate Court can pass the orders on all issues, even if no cross-objection has been filed. Even if property is given by way of maintenance it cannot tantamount to partition. 4. In the light of above, no error in the Judgments, no substantial of law is involved, as such present Second Appeal is dismissed. However, there shall be no order as to costs. 5. In view of the disposal of the Second Appeal, Civil Application No. 15057 of 2010 does not survive, and the same is disposed of accordingly. [S.V. GANGAPURWALA,J] SDM* 700.10SA