(1) SA. 642.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 642 OF 2008 Kishanrao S/o Babarao Deshmukh and others .. Appellants VERSUS Sunderrao S/o Babarao Deshmukh and others .. Respondents AND CIVIL APPLICATION NO. 8672 OF 2008 IN SECOND APPEAL NO. 642 OF 2008 Kishanrao S/o Babarao Deshmukh and ors. .. Applicants VERSUS Sunderrao S/o Babarao Deshmukh and others .. Respondents Mr. S.V. Gangapurwala, Advocate h/f. Ms. M.R. Jamdhade, Advocate for the appellants-applicants Mr. Sachin Deshmukh, Advocate for the respondents CORAM : A.V. NIRGUDE, J. DATED : 27TH AUGUST, 2009 P.C.:- 1] Upon hearing the learned counsel for the parties, and after perusing the judgments of the Courts below, I came to a conclusion that there is no substantial question of law involved in this appeal and the appeal cannot be admitted. (2) SA. 642.2008 2] The factual background of the case is as under:- . The respondents were original plaintiffs and they sued the appellants saying that they and the appellants were members of joint Hindu family. They alleged that the three pieces of lands namely survey no. 166/3, 293/2 and 82 of village Sengaon were properties of joint family. The appellant no.1 and the respondent no.1 are step-brothers. The appellant no.1, was the manager of the joint Hindu family and had purchased the land survey no. 82 utilising funds of the joint family. During the lifetime of Babarao, the father of both the appellant no.1 and respondent no.1 sold 1 acre portion of land survey no. 293/2 in favour of the son of the appellant no.1. 3] The appellants resisted the suit. They said that father of the parties Babarao had partitioned the joint family property namely survey nos. 166/3 and 293/2 between the appellant no.1 and respondent no.1 in 1969-70. The appellant no.1, thereafter purchased the land survey no. 82 utilising his own earnings and thus was his self- acquired property. The trial Court held that the father of the parties Babarao did not effect partition of the family properties namely survey nos. 166/3 and 299/2. However, it upheld the appellant's contention that the appellant no.1 had (3) SA. 642.2008 acquired land survey no. 82 independently and thus it was his self-acquired property. It also held that the sale of 1 Acre land out of survey no. 293/2 effected by Babarao in favour of the appellant's son was binding on the respondents. The respondents challenged these finding in the lower appellate Court. The present appellants did not file cross-objection, challenging the finding of the appellate Court that the first two pieces of land were not partitioned during the lifetime of Babarao. The lower appellate Court proceeded to hear the appeal on the premise that the present appellants have accepted the finding of the trial Court that there was no partition during the lifetime of Babarao. But it held that the appellant no.1 could not have purchased the land survey no. 82 on his own and it was not his self-acquired property. It held that the land survey no. 82 was also joint family property. The appellants essentially challenged this finding of the Courts below. If the appellants did not challenge the finding of the trial Court about their case of partition during the lifetime of their father, the very fulcrum of their case has been lost. In view of this peculiar position, appellants cannot continue their case which was based on partition and the appellants cannot continue to assert their case that the land survey no. 166/3 came to the share of the appellant no.1. In other words, the appellants have conceded to the finding that even after the (4) SA. 642.2008 death of Babarao, jointness of the family continued and the appellant no.1 acted as Karta of the family. 4] The lower appellate Court, specifically held that in this background the appellant no.1 could not have acquired the third piece of land survey no.82. The lower appellate Court rejected the rather feeble case of the appellant no.1 that despite of being a member of joint family, he had independently arranged funds for paying the price of the third piece of land survey no. 82. The lower appellate Court rightly rejected this case, mainly because the stand was not based on specific pleadings. The Courts below thus examined the facts of the case very thoroughly and rejected the entire case of the appellants. The reasons for coming to such conclusion are quite cogent. I am, therefore, not inclined to disturb the same at second appellate stage. As said above, there appears no substantial question of law arising in the Second Appeal. 5] The Second Appeal stands dismissed. 6] In view of the dismissal of the Second Appeal, Civil Application no. 8672 of 2008, seeking stay does not survive and the same stands dismissed. Interim relief stands vacated. Sd/- (A.V. NIRGUDE, J.) arp