1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.225 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 07.04.2011. 1. Heard. 2. This is defendant's Second Appeal. The Respondents/plaintiffs had filed a suit for partition and separate possession. The trial Court decreed the suit. The original defendant No.2 preferred appeal. The appellate Court dismissed the appeal. Aggrieved thereby, the defendant No. 2 has filed the present Second Appeal. 3. Mr.S.V. Warad, learned counsel for the appellant contended that the plaintiffs are not entitled for partition of the said property as all the interested co-sharers are not made parties. In absence of them, the suit itself is not 2 maintainable. It was also further contended by the learned counsel that there is no record to show that S.No.101 and S.No.102 are converted into S. No.337 and S.No.344 in the Consolidation Scheme. Mr.Warad, learned counsel further submitted that defendant No.1 was in possession of the suit land as a legal heir of Rambhabai and deceased Somabai was never in possession. According to the learned counsel, this aspect has not been considered. 4. Per contra, Mr.S.Y. Mahajan, learned counsel submitted that both the Courts concurrently on appreciation of evidence has held the plaintiff to be entitled to the share. Even the sister of Deorao would not get any share in view of the fact that the property was owned by Rambhabai. So non-addition of said sister of Deorao would not affect the proceedings. Moreover, such objection was never taken by the defendant in the pleadings. 5. The relationship between the parties is undisputed. Even it is held by both the Courts that the plaintiffs were being given share by the 3 Respondents from the area of the land. The objection regarding non-joinder of necessary parties was taken by the appellant. As it is undisputed that the property was owned by Rambhabai and relationship is also not disputed then in such circumstances, no error is committed by the Courts below while passing the impugned decree. The argument of Mr.Warad, learned counsel that taking into account the number of shares the fragment would be created and as such the partition can not take place. This aspect can be considered by the Executing Court. 6. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.07.04.2011. asp/office/sa225.10 4