1 S.A. 145/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 145/2011 WITH CIVIL APPLICATION NO.16755/2010 WITH CIVIL APPLICATION NO.5006/2011 PRYAGBAI W/O KACHRU RAHADE AND ANOTHER VS. MASU S/O ASRAJI GADE AND OTHERS Mr. V.D. Salunke, Advocate for the appellant. Mr. M.A. Tandale, Advocate for respondent Nos. 1, 2A and 2B. Mr. R.R. Imale, Advocate for respondent No.5. Mr. R.V. Naiknavare, Advocate for respondent No.6. Mr. A.L. Tikle, Advocate for respondent No.7 & 8. CORAM : A.V. Nirgude, J. DATED : 13th June, 2011. ORAL ORDER 1. Heard. 2. This appeal is filed against the concurrent findings of the Courts below that the appellants / defendants could not prove that his vendor was owner of the entire suit property and could not further prove that the respondent No.1 (original plaintiff) did not have share in the suit property. The respondent No.1 (original plaintiff) filed this suit for partition. The suit property is one piece of land admeasuring 11 acres. Admittedly this property belonged to respondent No.1’s mother. In 1950 the name of the appellants’ vendor who happened to be the respondent No.1’s real brother, came to be recorded as owner, despite the fact that the original owner, the mother of respondent No.1 was live there. In 1972 the original owner 2 S.A. 145/2011 mother of the respondent No.1 died. In 1972 the suit transaction took place between respondent No.1’s mother and the appellants. The suit for partition was filed in 1998. Both the Courts below held that the appellant could not prove that their vendor, the respondent No.1’s brother had absolute ownership to the suit property. The learned advocate appearing for the appellants tried to suggest that this case would fall within the ambit of section 41 of the Transfer of Property Act. He suggested that his clients’ vendor was an ostensible owner. But this plea was not taken and therefore, the issues as to whether the original owner consented to her son that he should represent to the world that he was owner of the property, was not contesting at all. Such plea therefore, is not permissible at this stage. 3. The learned advocate appearing for the appellants pointed out further that the respondent No.1 ( original Plaintiff) did not seek declaration that the suit transaction was not binding to her share. He said that such declaration would have resulted into payment of additional court fees etc.. Again this plea was not taken in the Courts below and for the first time, such plea is not permissible at this stage. No substantial question of law arises in this appeal. The appeal should therefore, fail. The appeal stands dismissed. 4. Civil Application No.16755/2010 and Civil Application No. 5006/2011 are disposed of. [A.V. NIRGUDE,J.] ts k/2011/June13/sa145.11