1 S.A.No.129_2011 JSN FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.129 OF 2011 Office Notes, Office Memorandum of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Shri Vinod Jadhav, Advocate for the Appellants. None for the Respondent. CORAM : A.S.OKA, J. DATE : 24th November, 2011. P.C. 1. Heard learned counsel appearing for the appellant. Appellant filed a suit for partition and separate possession of share of 3 Annas and 8 Paise in the suit property. The Trial Court decreed the suit. The Appellate Court dismissed the suit on two grounds. First ground is that the suit property was acquired by the 4th defendant who was father of the Plaintiff and during the life time of the father, the appellant had no locus to file suit. Second ground is that the description of the suit property incorporated in the plaint was incorrect. 2 S.A.No.129_2011 2. The learned counsel appearing for the appellant invited attention of the Court to the averments made in the plaint. He submitted that the averment is that the suit property was a joint family property and therefore, the appellant had right to seek partition. He submitted that now the 4th defendant is dead and therefore, the suit is maintainable. 3. I have considered the submissions. In the entire plaint there is no assertion that the suit property is a property of Joint Hindu Family. In paragraph No.3, there is a specific averment that 4th defendant ( father of the appellant) purchased a share of 3 Anna and 8 Paise in the land bearing revision survey No.195/3 admeasuring 7 acres and 2 gunthas by registered sale deed dated 21st September, 1955. There is not even averment that the father purchased the property in his capacity of the ‘Karta’ of the Joint family. It is pertinent to note that the appellant claimed separation of share equivalent to 3 3 S.A.No.129_2011 Annas and 8 Paise. In the plaint it is averred that as the father was unable to come to the Court, the suit had been filed by the appellant on behalf of the family of the Father. From the prayer, it is apparent that the appellant has not sought a share in 3 Annas and 8 Paise share of his father. But he is seeking separation of the entire 3 Annas and 8 Paise share purchased by his father. 4. Therefore, the Appellate Court was right in holding that the suit filed by the appellant was not competent on the date of institution of the suit in as much as during the life time of his father, the appellant could not have claimed any share in the property purchased by the father. 5. The cause of action on which the suit is filed is completely different from the cause of action which may now become available to the appellant to claim separation of his undivided share in the undivided share of his father in the larger property. 4 S.A.No.129_2011 Hence, the impugned decree will not prevent the appellant from filing a fresh suit as the cause of action which arose on the death of his father was not available to the appellant when he filed the present suit. No substantial question of law arises. Subject to what is observed above, the Second Appeal is dismissed with no order as to costs. C.A.No.310 of 2011 does not survive and hence disposed off. [ A.S.OKA, J ]