sa268.10 1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ SECOND APPEAL NO.268 OF 2010 ,With CA/5665/2010 ,In SA/268/2010 ,With CA/5666/2010 ,In SA/268/2010 SHIVRAM NIVRUTI BORGAD VERSUS KSUSABAI DASHRATH CHAVAN AND ORS ... Advocate for Petitioners : Mr.S B Ghatol Patil Advocate for Respondents : Mr. Sonwane Mahesh R. Adv for R.Nos. 2, 3 4 ... CORAM : S.S. SHINDE, J. Dated: November 25, 2011 ... This appeal has been filed challenging the judgment and order dated 4th December, 2009 in R.C.A. No.10 of 2006. The Counsel for the appellant would submit that the prayer was made before the lower appellate Court since the defendants, who are appellants herein, did not get opportunity to lead evidence and put forth sa268.10 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ their case. The learned Counsel appearing for the appellants submits that no sufficient opportunity is given to the appellants to put forth their case. There were only three dates which were fixed for recording evidence of the defendants and therefore, in all fairness, the defendants should get an opportunity to contest the suit. It is further submitted that Neelabai who is sister, is also not joined as party in the suit. Therefore, such a decision in the suit cannot bind the party and therefore, the decree passed in such suit in absence of necessary party is no good decision. 2 I have given due consideration to the submission of the learned Counsel for the sa268.10 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ appellant. It is not in dispute that from 19.4.2002 to 24th November, 2002, the matter was fixed for evidence of the defendants. Even, the learned Counsel for the appellant did not dispute that three dates were fixed during this period for recording evidence of the defendants. It is also not in dispute that the original plaintiff is step sister of the appellants herein. 3 Therefore, in my considered opinion, once this position is accepted that the plaintiff is step sister of the appellants herein, she is entitled for her share. That apart, from the discussion by the lower appellate Court, I find that sufficient opportunity was given to the defendants to sa268.10 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD _____________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _____________________________________________________________ lead evidence. It appears that to defeat the claim of the original plaintiff, delaying tactics have been adopted by the defendants. This appeal does not raise any substantial question of law for consideration. 4 Hence, second appeal is dismissed summarily. Record &proceedings be sent back to the concerned court forthwith. It is needless to clarify that if other sisters are entitled for share in the suit property, they will get their share. Civil Applications also stand disposed of. (S.S. SHINDE, J.) PLK/*