1 S.A. 729/2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 729 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. S.S.Choudhari,Advocates for appellant. Mr. Sachin Deshmukh, Advocate for resp. nos. 1 & 2 ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 01/12/2010 PER COURT : 1. This is defendant nos. 1 and 2’s Second Appeal. 2. The plaintiffs had filed Suit for partition and separate possession of the suit properties. The Trial Court dismissed the Suit on the ground of limitation. It negatived the contention of the defendants that the plaintiff had relinquished their share. But, only on the ground that the Suit is filed after 20 years of the death of Prayagbai, the Trial Court has held that as the Suit is not filed within 12 years, it is barred by limitation. The plaintiffs preferred Appeal before the District Court. The appellate Court allowed the Appeal and decreed the Suit of the plaintiffs giving the plaintiffs along with defendant nos. 3 to 5 3/4th share and 2 S.A. 729/2010 defendant no. 1 1/4th share in the suit properties. Defendant nos. 1 and 2 have assailed the said Judgment and decree in the present Second Appeal. 3. Mr. S.S. Choudhari, the learned counsel for the appellants submitted that the Trial Court had rightly come to the conclusion that the Suit is barred by limitation. Even the name of defendant no. 1 was entered as legal representative in the revenue record, which shows that the plaintiffs were excluded from the joint family property. As such, the appellate Court has committed an error in holding the Suit to be within limitation. The learned counsel further contended that Munjaji had died prior to 1956 and as such the plaintiffs, who are the daughters had no legal right in the suit property as defendant no. 1 was adopted son. 4. Per contra, Mr. Sachin Deshmukh, the learned counsel for the respondents submitted that the appellants have not proved ouster and as such the question of limitation does not arise. The possession of one co-owner is presumed on behalf of the other co-owners. The learned counsel further contended that the lower appellate Court by evaluating the evidence on record, came to the conclusion that Munjaji died after 1956. The adoption had also taken place in the year 1959, admittedly after 8 – 9 months of the death of Munjaji. As such, on the death of Munjaji, the rights of all the plaintiffs were crystallized. 3 S.A. 729/2010 5. With the assistance of the learned counsel, I have gone through the Judgment and decree. 6. In a Suit for partition and separate possession, the question of limitation would not arise unless and until the defendants prove ouster as is required under Article 110 of the Limitation Act. In the present case, there is no pleading of ouster. In absence of the basic plea of ouster, the Trial Court could not have held the Suit to be barred by limitation. The Trial Court without considering any provision of law has held the Suit to be barred by limitation. The lower appellate Court has properly considered the same. 7. As far as date of death of Munjaji is concerned, neither the plaintiffs nor the defendants have given the exact date of death of Munjaji. The lower appellate Court after evaluating the evidence on record of the witnesses, has come to the conclusion that Munjaji died after 1956 and prior to 1959. After his death, defendant no. 1 was adopted by Prayagbai. The said finding of fact is arrived at by appreciation of evidence. 8. Mr. Choudhari, the learned counsel for the appellant further contended that the lower appellate Court has erroneously awarded 3/4th share to the plaintiffs and defendant nos. 3 to 5. The lower appellate Court has committed an error while calculating the shares of the plaintiffs. The said submission can not be accepted for the reason 4 S.A. 729/2010 that at the time when Munjaji died, Prayagbai and Chandrabhagabai were the only legal heirs, who would inherit ½ share each. After the death of Prayagbai, her half share would be divided equally between defendant no. 1, Chandrabhagabai and defendant nos. 3 to 5. The lower appellate Court has correctly calculated the shares. No error can be found in the same. 9. In light of the above, the Second Appeal being sans substantial question of law, is dismissed, however with no order as to costs. 10. In view of dismissal of Second appeal, the Civil Application does not survive and is disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 729.2010