1 S.A. 799 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 799 OF 2010 Ramrao S/o Shamrao Pawar Appellant V E R S U S Chaturabai W/o Murlidhar Patil and others Respondents Mr. Sujeet D. Joshi, Advocate for appellant Mr. D.P. Palodkar, Advocate for respondent Nos. 1 & 2 CORAM : S.V. GANGAPURWALA, J. DATED : 16th March, 2011 PER COURT : 1. This is Defendant No. 1’s Second Appeal. The present respondents had filed suit for partition and separate possession. The trial Court decreed the suit. Defendant No. 1 preferred an appeal, the appellate Court dismissed the appeal, confirming the Judgment and Decree passed by the trial Court. Being aggrieved thereby, appellant has approached this Court in the present Second Appeal. 2. Shri Joshi, learned counsel for the appellant contended that the partition had taken place in the year 1966-67, as the partition had already taken place, the plaintiffs are not co-parceners at the relevant time. They were given status of co-parceners in the year 1999. As such, the partition having already taken place the plaintiffs cannot claim any right in the said property, as their rights stood extinguished 2 S.A. 799 of 2010 on the date of partition which had taken place. 3. Shri Palodkar, learned counsel for respondent Nos. 1 & 2, submits that both the Courts concurrently, on appreciation of evidence have categorically come to the conclusion that the defendant No. 1 could not prove theory of partition put forth by him. The suit was filed in the year 1999, as no partition had taken place, till the said date. The parties were governed by the amended provisions of Hindu Succession Act, by virtue of which plaintiffs are treated as a co- parceners, and as such they had right to claim partition of the land. 4. With the assistance of learned Counsel, I have gone through the judgment. Both the Courts on appreciation of evidence have categorically come to the conclusion that the defendant No. 1 has failed to prove his theory of partition. The relationship between the parties is not disputed. There is also no dispute regarding the status of the property being ancestral. Once it is established that the properties are ancestral and no partition had taken place, then the suit filed in the year 1999 by the plaintiffs was perfectly maintainable. Moreover, in view of the Central amendment in the year 2005 to the Hindu Succession Act, the rights of the daughters have also been . crystallized. 5. In view of the afore said premise, no error is committed by the Courts below in passing the impugned Judgment and decree. In the 3 S.A. 799 of 2010 light of the same, Second Appeal being sans substantial questions of law is dismissed. However, there shall be no order as to costs. 6. At this stage, Shri Joshi learned counsel for the appellant states that the present appellant has sown crop which is now due for harvesting. Shri Palodkar, learned counsel for respondent Nos. 1 & 2 opposes the said prayer and states that the parties have complied with all the necessary procedure and only possession is left to be delivered. As such the request of the appellant may not be considered. 7. Taking into account the fact that the crop has been sown by the defendant No. 1 which is not disputed by the respondents, I feel it appropriate to protect the possession of the appellant till the crops are harvested i.e. upto 30th April, 2011. The appellant thereafter shall deliver the possession as per the measurement carried out by the authorities concerned. The appellant during this intervening period shall not deal with the property nor shall create any third party interest. ( S.V. GANGAPURWALA, J ) SDM*799.10/160311 4 S.A. 799 of 2010