IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 323 of 1991 Maruti Laxman Gade deceased by his heirs: 1A Jaibai Maruti Gade 1B Rama Maruti Gade 1C Smt.Chhabubai Baban Valhekar 1D Kisanabai Gangaram Limbore 1E Babi Sadba Katke .... Appellants (Original defendants) V/s Smt. Saibai Sahebrao Gaikwad ...Respondent (Original plaintiff) Mr.V.S.Peshave for Appellants Mr. A.S.Hirve for Respondent CORAM:S.R.SATHE,J. DATED:3rd August 2004 ORAL JUDGMENT :- 1. Being aggrieved by the judgment and order passed by the 5th Additional District Judge,Pune in Civil Appeal No.1012 of 1986 whereby the appeal was allowed and order passed by 5th Joint Civil Judge,J.D., Pune dismissing the Regular Civil Suit NO.60 of 1976 was set aside, the original defendant has preferred this second appeal. 2. In this appeal before me Mr.Peshave, learned Advocate for the Appellant dfendants has urged only two points - firstly, he submitted that first appellate court has erred in holding that plaintiff has proved that his father was the owner of the suit house. Secondly he canvassed before me that first Appellate Court ought to have held that suit was bad for non joinder of necessary parties viz. heirs of plaintiffs. 3. The brief facts giving rise to this second appeal are as under :- . The suit property described in para 1 of the plaint was initially owned by one Raghu Gade. He had 2 sons viz. Gabaji Gade and Laxman Gade. Plaintiff who happens to be daughter of Gabaji is widow of Sahebrao Gaikwad and original defendant Maruti Laxman Gade was the cousin brother of plaintiff. Partition took place between Gabaji Gade and Laxman Gade and as a result of the same, the suit house was allotted to Laxman Gade, father of defendant no.1. As a result of the partition the name of plaintiff was also entered in Grampanchayat record and the said house was numbered as House No.258. According to the plaintiff one room out of the suit house was given to Revubai Pawar as a tenant. However, when the plaintiff had gone out, taking advantage of the said situation the defendant forcibly took possession of the suit room from Revubai. When the plaintiff noticed this, she called upon the defendant to hand over the possession. However, defendant refused and on the contrary contended that suit house is in fact owned by him. Plaintiff, therefore, filed Regular Civil Suit No.60 of 1976 in the Court of Civil Judge, J.D., Pune. 4. The defendant filed his written statement and contended that the suit house was never owned and possessed by the plaintiff’s father. On the contrary it was the joint family property of plaintiff’s father and defendant’s father. However, after the death of Gabaji R. Gade defendant become the sole owner, he being the sole surviving coparcner of the suit property. The defendant also contended that suit room was leased out to Revubai Pawar by him and she handed over the possession in the year 1975. The defendant, therefore, contended that plaintiff is not entitled to get possession of the suit property. Secondly, the defendant contended that Gabaji R. Gade has expired leaving behind two daughters viz. Saibai i.e. present plaintiff and his other sister. However, the said sister has also expired leaving behind 2 children. The defendant therefore contended that heirs of plaintiff’s sister ought to have been joined in the present suit and the suit is bad for non joinder of necessary parties. 5. From these pleadings the learned trial Court framed issues at Exh.30 and after considering the evidence adduced by both the parties the trial Court came to the conclusion that the plaintiff has failed to prove the partition between her father and defendant’s father and consequently to hold that the suit property is owned by the plaintiffs. The trial Court also held that the suit is bad for non joinder of necessary parties and consequently the suit came to be dismissed. 6. Being aggrieved by the said judgment and order the plaintiff preferred Civil Appeal No.1012 of 1986. After hearing the arguments of both the leaned Advocates the first Appellate Court came to the conclusion that the trial Court erred in holding that the plaintiff has failed to prove the title. He also held that the suit is not bad for non joinder of necessary parties. He therefore allowed the appeal and order of dismissal of suit was set aside. He directed the defendant to hand over the vacant possession of the suit property by the end of March 1991. 7. Being aggrieved by the same the defendants have preferred this second appeal. In this appeal before me Mr.Peshave, learned Advocate for the defendant has urged only two substantial questions of law, viz. firstly Whether the plaintiff had proved title to the suit property and secondly whether the suit was bad for non joinder of necessary parties. 8. It is not in dispute that the suit was initially filed by Raghu and plaintiff and defendant are children of deceased Gabaji R. Gade and Laxman R. Gade respectively. It is true that plaintiff has not adduced any document to show that partition had taken place between Gabaji and Laxman. However, at the same time the plaintiffs had produced several extracts of the property card for showing that the suit property was initially standing in the name of Gabaji R. Gade and after him it was entered in the name of present plaintiff. As against this the defendant has not adduced any evidence to show that the suit house bearing No.258 was entered in his name. It has come on record that since the year 1952 the suit house is standing only in the name of plaintiff. Having regard to this documentary evidence the learned appellate Court has held that the plaintiff has proved her title to the suit house. There is nothing on record to show that finding recorded by the lower appellate court in this behalf is erroneous. So there is no reason to interfere with the said finding. Merely because there was no specific evidence with regard to partition it cannot be said that the plaintiff had failed to prove that the suit property had come to the share of her father, particularly when we find that some portion of the suit house is standing in the name of plaintiff since long while rest of the portion is standing in the name of defendant. 9. The learned Advocate for the defendant strenuously argued before me that the suit is bad for non joinder of necessary parties. According to him when the plaintiff had admitted that the suit property was inherited by her as well as her sister it was necessary for her to join her sister as party to the present suit. When the sister had expired, it was necessary for the plaintiff to implead her children in the present suit. However, it has to be mentioned that present suit is filed against the defendant alleging that the defendant is a tress passer. There are various authorities pronouncements wherein it has been held that one co owner can file a suit for recovery of the possession of the property falling to his share and the share of other co owners. Plaintiff in the instant case is not seeking any specific declaration to the effect that she alone is owner of the suit property. Therefore taking into consideration all these aspects the learned lower Appellate Court has rightly observed that the suit is not bad for non joinder of necessary parties. 10. Having held that the plaintiff is the owner of the suit property and defendant had on the contrary failed to prove his title and also to show that Revubai Pawar had handed over the possession of the suit room to him it must be held that the learned appellate Court rightly allowed the appeal and passed a decree for possession against the defendant. The said order is legal and correct. In this view of the matter there is no substance in this appeal. The appeal is dismissed with costs. ( S.R.SATHE,J.)