1 sa 191.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 191 OF 2011 1. Kashinath S/o Ramchandrappa Patil and others .. Appellants Versus Rangama W/o Kashinath Patil and another .. Respondents Shri Madhaveshwari D. Thube-Mhase, Advocate for Appellants. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH APRIL, 2011. PER COURT : . This is plaintiffs' second appeal. The plaintiffs had filed a suit for partition and separate possession which came to be dismissed by the Trial Court. The plaintiffs preferred an appeal. The Appellate Court also dismissed the appeal confirming the judgment and decree of the Trial Court. The plaintiffs have assailed the said judgment in the present second appeal. Mrs. Thube-Mhase, the learned counsel for appellants submits that the Courts have gone on wrong premises while dismissing the 2 sa 191.11 suit of the plaintiffs. The Courts have accepted the theory of defendant that the partition was effectuated in the year 1970. The said finding could not have been arrived at as in the year 1969 the suit was filed for possession and the plaintiff and defendants both got joint possession of the suit property in the year 2000. As such, it was erroneous on the part of the Courts to come to the conclusion that partition between the parties was effected in the year 1970. According to the learned counsel, even the Courts below have committed an error in applying the Central Amendment effected in the year 2005. The said amendment was effected in the year 1995 to the Hindu Succession Act. In the present proceedings the marriage of the respondent had taken place prior to 1994 and so they would not be entitled for the benefit of the amendment. 2. The learned counsel further contended that it is a case of total mis-appreciation of evidence and non consideration of material evidence giving rise to substantial question of law. 3. With the assistance of the learned counsel I have gone through the judgment. The Courts below have dismissed the suit not only on coming to the conclusion that the partition was 3 sa 191.11 effected between the parties in the year 1970, but also on the count that there are other properties situated at Anandwadi which were ancestral properties and the same were not included in the suit i. e. the properties bearing Sy. No. 278, 281, 296 and 297. It is trite law that in a suit for partition all the properties have to be included in the suit. A suit de-hors the inclusion of all the properties would not be maintainable for partition and separate possession. The Apex Court in a case of Kenchegowda (deceased by L.R.'s) Vs. Siddegowda reported in (1994) 4 S.C.C. 294 has held that even otherwise a suit of partial partition in absence of inclusion of other joint family properties is not warranted in law. 4. The fact that the properties of Anandwadi were ancestral properties is not a disputed fact. The said properties stood mutated in the name of plaintiffs, as such are not included in suit, and the suit property which is mutated in the name of defendant is only sought to be made subject of partition. In the light of that the suit itself was not tenable and the Courts below have rightly dismissed the suit on that count also. 5. Regarding the theory of defendants that the partition had 4 sa 191.11 taken place in the year 1970, the Courts have discussed the evidence in this regard. Though the decree was passed and the possession was said to have been received jointly in the year 2000, the fact that the present suit property was mutated in the name of defendants which is only 17 acres and the properties of Anandwadi mutated in the name of defendant Nos. 1 and 2 admeasuring 51 acres and not included in suit is also considered while coming to this conclusion. 6. The Courts on appreciation and evaluation of evidence on record have arrived at a plausible conclusion. Moreover, in view of undisputed fact that all the ancestral properties were not included the suit for partition itself was not maintainable. No error is committed by the Courts below in dismissing the suit on that count. The second appeal being sans substantial question of law is dismissed, however with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11