1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.210 OF 2009 Shri Milind Vasudev Sane & Anr. ..Appellants versus Shri Sitabai Goma Gavade & Others ..Respondents Mr.G.V.Limaye for the appellant None for the respondent CORAM : R.Y.GANOO, J. DATE : 6th JULY, 2009. P.C: 1. One Sitabai Gavade instituted Civil Suit in the Court of 2 nd Joint Civil Judge, Junior Division, Ratnagiri, being Regular Civil Suit No.27 of 2001 against the present appellants by impleading them as defendant Nos.1 and 2. The defendant Nos.3 to 26 were her near relatives as can be observed on the basis of the surnames. It is not in dispute that defendant Nos.3 to 26 were related to said 2 Sitabai, the present respondent No.1 one way or the other. The said suit came to be filed for declaration that the sale deed executed in favour of the present appellants is illegal on the ground that the Power of Attorney on the basis of which the sale deed was executed was on behalf of a particular person who was dead on the date of execution of Power of Attorney. One lady by name Demi Gawde was no more when the Power of Attorney is said to have been executed by her along with others. The respondent No.1 had also sought partition of suit properties. The 2 nd Joint Civil Judge, Junior Division, (hereinafter referred to as the learned trial Judge) considered the entire evidence for the purpose of determining the question whether the sale deed executed in favour of the appellants was legal and valid and whether partition can be effected so far as the properties in question. 2. The learned trial Judge on appreciation of evidence came to the conclusion that the power of 3 attorney on the strength of which the present appellants secured sale deed was defective in as much as one donor by name Demi Gavade was no more, though the Power of Attorney showed that she was alive. The learned trial Judge was impressed by this fact and naturally he declared that the said sale deed as bad in law. He thereafter considered the question of partitioning the property and after considering the total number of claimants and other aspects, came to the conclusion that the original plaintiff i.e. the respondent No.1 is entitled for 16 pai share in the suit land. He directed that the partition should be effected. Being aggrieved by this judgment and decree the present appellant filed Regular Civil Appeal No.75 of 2003 in the District Court at Ratnagiri which was heard and decided by the learned District Judge-I, Ratnagiri. The learned District Judge by judgment and decree dated 28.1.2009 dismissed the appeal. Hence this second appeal. 3. It is required to be noted that the sale deed 4 dated 11.4.2005 came to be declared as void as a result of the defective power of attorney. Learned Advocate Mr. Limaye before this Court addressed following points to press the admission of the second appeal and it must be mentioned that all those points relate to the questions arising out of the decree for partition which came to be granted by the learned trial Judge. It was submitted that the learned Judge passed decree in the suit in absence of any evidence from the plaintiff. It may be noted that the defendant No. 24 stepped into the witness box and based on the evidence of said defendant, decree for partition came to be passed. It is well settled principle that in a suit for partition there is nothing like one person as plaintiff and other person as defendant when it is seen that property is required to be partitioned. Hence, non stepping of the plaintiff Sitabai in the box cannot be termed as defect in hearing and disposing of the suit. 4. The second point was namely, finding recorded in 5 favour of the original plaintiff that she is entitled to 16 pai share. The third point was whether the decree for partition could be passed in view of Anti Fragmentation Act and 4 th point was whether a suit can be entertained in the absence of 6 sons of plaintiff. It must be mentioned that all the points raised by learned Advocate Mr. Limaye pertain to objections in regard to decree for partition. The status of the appellants before the learned Judge was that of a purchaser in respect of the property in question on the basis of the sale deed referred to above. If the said sale deed is declared as void and if no defect can be found in the said declaration then objections raised by learned Advocate Mr. Limaye cannot be entertained because the present appellants are not at all concerned with what happened to the prayer for partition because the property was required to be partitioned not between the original plaintiff and the appellants. The points raised by learned Advocate Limaye do not touch their right for the property. It is 6 pertinent to note that defendant Nos.3 to 26 have not challenged the decree passed by the learned trial judge as well as the decree passed by the learned District Judge. If this is so, all the parties who had a particular share in the property in question have accepted the decree for partition and stranger namely the present appellants whose claims have been rejected by the trial court have no right to address this court on the question of effect of the decree in partition suit. As such the points raised by learned Advocate Mr.Limaye can not be accepted. 5. For the reasons mentioned aforesaid, the appellants have not been able to raise substantial question of law between themselves and the original plaintiff Sitabai and as such the Second Appeal cannot be entertained. Hence the Order. ORDER Second Appeal is dismissed with no order as to costs. 7 In view of the dismissal of the second appeal, the Civil Application No.958 of 2009 does not survive and the same is also dismissed with no order as to costs. (R.Y.Ganoo, J.)