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 JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1216 OF 2004. SECOND APPEAL NO.1216 OF 2004. SECOND APPEAL NO.1216 OF 2004. Vyankat Ramhari Jadhav & Others ..Appellants versus Nivrutti Ramhari Jadhav & Others ..Respondents. Mr. Surel Shah for the appellants. Mr. Milind Deshmukh for the respondents. Coram : Coram : Coram : S.R.Sathe, J. S.R.Sathe, J. S.R.Sathe, J. Dated : 18th July, 2007 Dated : 18th July, 2007 Dated : 18th July, 2007 P.C. 1. Heard both the learned advocates. Perused the judgment of the trial court as well as of the appellate court. 2. Appellant-the original defendants in Regular Civil Suit No.342 of 1986 have preferred this appeal against the judgment and order passed by the Court of 3rd Addl. District Judge, Pandharpur, whereby the order passed by the trial court decreeing the plaintiff’s suit for partition and separate possession was confirmed and appeal was dismissed. 3. Admittedly, the appellant -original -2- defendant No.1 is the real brother of the original plaintiff Nivrutti. Shanker is the other brother of plaintiff and defendant No.1. The relationship between the parties is not in dispute. It appears that the contention taken by the defendant was that some of the suit properties are self acquired properties of the appellant-defendant No.1. 4. Both the courts below have held that the defendant has failed to prove that some of the properties alleged by him are the self acquired properties of the defendant. It seems that as he failed in the trial court, he made an attempt to lead additional evidence in the first appellate court and for that purpose produced a pass book of his bank account. At that time he submitted that as he was ignorant and he did not get proper advise he did not produce the said pass book in the trial court and therefore made an attempt to lead additional evidence. It appears that the first appellate judge, after hearing the arguments of both the learned advocates has passed a very elaborate order rejecting the defendant’s application for leading additional evidence. The first appellate judge has taken into consideration each and every -3- aspect and rightly rejected the said application. So, now the present appellant is not entitled to agitate any point in this court and there is no substantial question of law involved in this matter, so far as the point regarding additional evidence is concerned. 5. Shri Surel Shah, the learned advocate for the appellant-original defendant strenuously argued before me that in the instant case it is clear from the pleadings of the parties and evidence that the joint family of the plaintiff and defendant was having some other joint family properties, but the said properties were not included in the plaint and as such the suit for partition was not maintainable. It is true that normally in a suit for partition the plaintiff must include all the joint family property. However, from the pleadings of the plaintiff it is quite evident that plaintiff had specifically reserved his right to seek partition in respect of some of the properties. What is interesting to be noted is that the defendants had not contended that it is necessary to include the said properties and the suit is bad on that count. It is also very clear that no issue to that effect -4- was also sought by the defendants. Shri Shah, learned advocate for the appellant-defendants very ingeniously argued before me that even if it is said that plaintiff had reserved his right then it was necessary for him to seek leave of the court as per the provisions of Order II Rule 2 of CPC. It would be worthwhile to see what Order II Rule 2 says. It runs as follows: " 2. Suit to include the whole claim:- 2. Suit to include the whole claim:- 2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff my relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim:- Relinquishment of part of claim:- Relinquishment of part of claim:- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several Omission to sue for one of several Omission to sue for one of several reliefs:- reliefs:- reliefs:- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. 6. The bare reading of the said provision indicates that the same is not applicable to the -5- facts of the present case. Firstly, this is not the case where the plaintiff has relinquished any portion of his claim in order to bring the suit within the jurisdiction of the particular court. All that was pleaded by the plaintiff was that he is reserving his right. It would certainly not amount to relinquishment, so in my opinion, the above mentioned provision is not applicable and there is no substance in the argument advanced by the learned advocate for the defendant in this behalf. 7. We find that both the courts below have rightly held that the suit property is a joint family property in which the parties are having certain shares. There is nothing on record to show that the said finding of fact is perverse or is not borne out from the evidence on record. There is no error of law. No substantial question of law is involved in the present appeal. Hence the appeal is dismissed in limine. 8. At this stage, the learned advocate for the appellant-original defendant submitted that the above mentioned order be stayed for a period of eight weeks. The learned advocate for the -6- respondents-original plaintiffs opposed for the same. Considering the fact that this is a decree for partition of agricultural land as well as house property, considerable time will be required for actual partition and possession. Hence, there is no necessity to stay the order, however it is directed that actual taking and handing over of the possession of the property should not be carried out in any event prior to 31.8.2007. (S.R.Sathe, J.) (S.R.Sathe, J.) (S.R.Sathe, J.)