1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 238/2005 (Sahebrao Shankarrao Babar & 4 others VERSUS Naibrao @ Narayan Shankarrao Babar & 2 others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri V.M. Deshpande, counsel for the appellants. Shri V.G. Wankhede, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : AUGUST 21, 2008. Heard the learned counsel for the parties. The appellants are some of the defendants. Plaintiff Naibrao had filed a suit against his brothers and sisters and the son of one of his deceased brother for partition and separate possession of his share in the suit properties. According to the plaintiff, the suit properties were the joint family properties. Defendant nos.1, 4 and 8 filed their written statement and defendant nos.3, 5 and 6 also filed a joint written statement. Defendant nos.2 and 7 admitted the claim of the plaintiff by filing separate written statement. They also admitted that the suit property was ancestral and joint family property. The defendant nos.2 and 7 also prayed for a decree of partition and separate 2 possession. Defendant nos.1, 3, 4, 5, 6 and 8, however, resisted the claim of the plaintiff. On the aforesaid pleadings of the parties, the trial and the appellate Court held that the plaintiff had succeeded in proving that the suit properties were joint family properties and the plaintiff was entitled to 9/48th share in the suit property. The Courts held that the contesting defendants failed to prove that the suit properties were the self acquired properties of deceased Shankarrao. The Courts also held that the suit filed by the plaintiff was not barred by limitation. Both the judgments are challenged in the instant second appeal. Shri V.M. Deshpande, the learned counsel for the appellants, submitted that the Courts were not justified in holding that the suit properties were joint family properties. It was further submitted on behalf of the appellants that both the Courts erred in holding that the suit was not barred by the provisions of the Limitation Act. According to the learned counsel for the appellants, since the plaintiff had pleaded in his plaint that the cause of action arose in the year 1985, the suit filed by him in the year 1999 was not tenable specially because the plaintiff had earlier filed the suit in the year 1987 and the 3 same was dismissed in default in the year 1995. Shri V.G. Wankhede, the learned counsel for the respondents, supported the judgments passed by both the Courts and submitted that the second appeal is liable to be dismissed as it does not give rise to any substantial questions of law. The first submission made on behalf of the appellants that the Courts were not justified in recording a finding that the suit properties were joint family properties is ill-founded as both the Courts have considered the relevant evidence on record to hold that the suit properties were joint family properties. The finding on this issue is a pure finding of fact recorded by both the Courts and does not give rise to any substantial question of law. On the other issue that the suit was barred by limitation, it is necessary to note that the defendants/present appellants had not raised any plea in their written statement that the suit was barred by limitation. Mere filing of an earlier suit and the dismissal of the earlier suit in default would not bar a subsequent suit for partition and separate possession. The Courts rightly held that even assuming that the suit filed by the plaintiff was barred by limitation, since it was a suit for 4 partition, defendant nos.2 and 7, who had admitted the claim of the plaintiffs and had also sought for partition by their written statement, had stepped into the shoes of the plaintiff and in the suit for partition, they could have been treated as plaintiffs. With the dismissal of this suit, the defendant nos.2 and 7, who had actually stepped into the shoes of the plaintiff, would have been required to file an independent suit for partition and separate possession and in this view of the matter, the trial Court rightly held that the suit filed by the plaintiff could not have been thrown out only on the ground that it was barred by limitation. Both the Courts then rightly considered the fact that the plea of the defendant that plaintiff was living away from the suit property for a long time as a result of his service would not be enough from depriving him of his right to claim the partition of the suit properties and the period during which he stayed away from the suit property cannot be considered while computing the limitation period. The trial Court rightly held that while computing the limitation in filing a suit for partition, there should be an express denial by the defendants to the partition. However, this was not so in the instant case as the defendant nos.2 and 7 had also prayed for 5 partition and separate possession of their share in the suit properties. It is in this background, that the Courts held that the suit filed by the plaintiff was not barred by limitation. The findings recorded by both the Courts are pure findings of facts which are based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE