: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.176 OF 2008 SECOND APPEAL NO.176 OF 2008 SECOND APPEAL NO.176 OF 2008 Ankush Waman Thengil ...Appellant. v. Malhari Keru Thengil & Ors. ...Respondents. Mr.G.N.Salunke , adv. for the Appellant. Mr.R.V.Bansode , adv. for the Respondent Nos.1 to 3. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 9th July, 2008. DATE: 9th July, 2008. DATE: 9th July, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the Parties. 2. This Second Appeal is filed by the plaintiff against the concurrent finding of both the Courts below. 3. To state in brief, the plaintiff/appellant is son of the defendant no.4. Defendant nos.1 and 2 are the brothers of the defendant no.4. Defendant no.3 is wife of the defendant no.2. The plaintiff filed the suit in the year 1992 contending that about 10-12 years before, he had constructed a house on the land gat no.146 and neither his father nor brothers of his father have any sort of right, title or interest in the suit property. According to him, the land gat no.146 is ancestral property of the defendant nos.1,2 and 4 and he has also right or share in the said property on which he :2: has constructed a house. He contended that his father, the defendant no.4 had filed the Civil Suit No.191 of 1989 against the brothers, i.e., defendant nos.1 and 2 for partition of gat no.146 and that suit was compromised among the defendant nos.1,2 and 4. In that compromise, it was agreed that the construction on gat no.146 be removed and the land will be put to the partition. According to the plaintiff, he was not party to that suit, and, therefore, he is not bound by the terms of the compromise nor the same can be removed or demolished. With these contentions, he claimed a declaration that he is exclusive owner and the possessor of the suit house situated on gat no.146 and he also claimed perpetual injunction restraining the defendants from demolishing the house. The defendant nos.2 and 4 did not appear and the matter proceeded ex-parte. The defendant no.1 contested the suit contending that the plaintiff and the defendant no.4 are residing jointly. No partition had taken place amongst them and this suit was filed only to frustrate the compromise decree in Regular Civil Suit No.191 of 1989. He contended that the decree is binding on the plaintiff and the suit is liable to be dismissed. He also denied that the plaintiff had constructed the house and he is exclusive owner of the said house. The defendant no.3 also filed written statement and denied the claim of the plaintiff. 4. After hearing the parties, the trial Court :3: rejected the claim of the plaintiff and dismissed the suit. The plaintiff preferred Regular Civil Appeal No.124 of 1997. That appeal also came to be dismissed. 5. There is concurrent finding of the Courts below that the land gat no.146 was ancestral joint family property of the defendant no.1, 2 and 4 being the brothers inter-se. This fact is not disputed even by the plaintiff/appellant. Plaintiff’s father, i.e., defendant no.4 had filed the suit no.191 of 1989 for partition and separate possession of the land gat no.146 itself. The Courts below have also given concurrent finding that the plaintiff is not exclusive owner of the house. There is concurrent finding that the land gat no.146 with the structure thereon is the ancestral joint family property of the defendant nos.1, 2 and 4. The learned counsel for the plaintiff/appellant contended that the compromise decree in Regular Civil Suit No.191 of 1989 is not binding on him because he was not party to that suit. From the facts stated above, it is clear that it was suit for partition of the joint family property filed by the defendant no.4 against his two brothers. In stead of contesting the same, the brothers amicably settled the matter and the compromise decree was passed. According to the learned counsel for the plaintiff/appellant, there could not be compromise decree without joining the present plaintiff in that suit. However, he could not show any legal provision, :4: which requires that the sons of brothers are also required to be impleaded as parties in a suit for partition among the brothers. If the defendant nos.1, 2 and 4 wanted, they could settle the matter amicably and partitioned the joint family property without filing any suit in the Court. In such a partition, among the three brothers, children of any of them would not be a necessary party. If it is so, in the suit filed by one of them for partition also, the children of any of those three brothers would not be necessary party. If the property could be partitioned out of the Court among the brothers without intervention of the Court, it could also be partitioned with the compromise in the Court among them. In view of this, I am not impressed by the contention of the counsel for the plaintiff/appellant that he was a necessary party. 6. In view of the facts and circumstances, there is no substantial question of law involved in the present appeal. Therefore, Second Appeal stands dismissed. 7. As the appeal itself is dismissed, civil application no.826 of 2006 does not survive and stands disposed off. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)