:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.399 OF 2008 SECOND APPEAL NO.399 OF 2008 SECOND APPEAL NO.399 OF 2008 WITH WITH WITH CIVIL APPLICATION NO.232 OF 2008 CIVIL APPLICATION NO.232 OF 2008 CIVIL APPLICATION NO.232 OF 2008 Prabhakar Govind Gosavi ...Appellant. v. Ravindra Vasudeo Gosavi & Ors. ...Respondents. Mr.A.M.Kulkarni , adv. for the Appellant. Mr.Gautam Tamble i/by Mr.S.G.Deshmukh , advs. for the Respondent Nos.1 to 4. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 15th July, 2008. DATE: 15th July, 2008. DATE: 15th July, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. This second appeal is filed by the original plaintiff. Admitted facts are that one Balkrishna died sometimes prior to 1942. He left behind three sons, Yashwant, Govind and Vasudeo and certain joint family properties. Govind was unmarried and had no son. Vasudeo had three sons, who are the plaintiff and the defendant nos.1 and 2. However, according to the plaintiff, Govind had adopted him as his son shortly before his death in May, 1954. According to the plaintiff, in 1942, partition had taken place among the three brothers and the suit house was allotted to Govind and being adopted son of Govind, he is the owner of the whole of the suit house. For this purpose, he relied :2: upon statement made by Vasudeo before the City Survey Officer in 1954. Admittedly, in 1949 Govind had filed suit for partition of agricultural lands as well as the house properties including the suit house. That suit was decreed and each of the three brothers was held to be entitled to 1/3rd share. Agricultural lands were put to partition and divided. According to the plaintiff, in view of the earlier partition of 1942, the suit house was given to the share of his adoptive father, Govind in adjustment of decree because he did not take any share in the agricultural lands. He filed Special Civil Suit No.186 of 1991 for recovery of possession of the entire suit house on the ground that the defendant nos.1 and 2 and their mother, defendant no.3 were in permissive possession of the house. The defendants contested suit and according to them, in spite of the decree passed in 1949, the suit house was not put to the partition and, they are in occupation of the house as joint owners and alternatively, they have perfected their title by adverse possession. They also contended that the suit is bad for non-joinder of Shridhar, son of Yashwant, who is necessary party for suit. After hearing the evidence led by the parties, the trial Court rejected the claim of the plaintiff that he was exclusive owner of the property or that the defendants were in permissive possession. The trial Court also rejected the contention of the defendants that they had become owners by adverse possession. With these findings, the suit :3: came to be dismissed. However, the trial Court held that the suit was not bad for non-rejoinder of the parties. 3. The plaintiff preferred Regular Civil Appeal No.116 of 2003. The appellate Court dismissed the appeal. The Appellate Court agreed with the findings of the trial Court on all the issues except about non-joinder of a necessary party. The Appellate Court held that as per the decree passed in 1949, Yashwant, Govind and Vasudeo had 1/3rd share each in the suit house and, therefore, Shridhar son of Yashwant is necessary party for the suit because the plaintiff claims exclusive possession of the suit house. The appellate Court found that in view of this, suit is bad for nonjoinder of the parties. The plaintiff has, therefore, come in second appeal. 4. After hearing, Mr.Kulkarni the learned counsel for the plaintiff/appellant and perusal of the judgments of the Courts below, I find that there is concurrent findings of the facts. There is no evidence of partition of 1942. In 1949 Govind, adoptive father of the plaintiff had filed the suit for partition of whole of the property including the suit house and each of the three brothers was found to be entitled to 1/3rd share. Record reveals that the decree was put to execution in respect of agricultural lands. However, the suit house :4: was never put to actual partition. Plaintiff claims exclusive title over the suit house on the basis of alleged statement of the Vasudeo before the City Survey Officer on 11-8-1954, i.e., after the death of Govind. However, that statement does not refer to the suit filed in 1949 or it’s result nor it mentions any adjustment in that decree that the suit house was given to the plaintiff or his adoptive father Govind. 5. In view of the fact that as per the said decree passed in suit of 1949, Yashwant had 1/3rd share and, therefore, after his death, his son would be entitled to 1/3rd share in the suit house. Therefore, Shridhar, son of Yashwant is necessary party in the present suit. The Appellate Court rightly came to conclusion that the trial Court was wrong in holding that the suit is not bad for non-joinder of the necessary party. I find no fault with the observations of the Appellate Court. 6. In view of the above circumstances, no substantial question of law is involved in the matter. Therefore, the appeal stands dismissed. 7. As the appeal itself is dismissed, Civil Application No.232 of 2008 does not survive and stands dismissed accordingly. :5: (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)