1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.22 OF 2001 WITH CIVIL APPLICATION NO.65 OF 2001 Krishnarao Bajirao Deshmukh (since deceased – through heirs and legal representatives A) Suryaprabha Krishnarao Deshmukh and others : Appellants versus Vinayakrao Bapurao Deshmukh (since deceased through heirs and legal representatives) A) Smt.Indirabai Vinayakrao Deshmukh and others : Respondents. Shri. Anilkumar Patil for the Appellants. Shri. P.S.Dani, for the Respondents Nos.1A to 1E. CORAM : R.M.SAVANT, J. DATED : September 17, 2008 P.C. 1. This Second Appeal takes exception to the Judgment and Decree dated 31/8/1999 passed by the learned VI, Additional District Judge, Satara by which the Judgment and Decree dated 13/6/1995 passed by the trial Court i.e IV Joint Civil Judge, Junior Division, 2 Satara came to be confirmed. 2. The Appellants are the original Defendants in Regular Civil Suit No.92 of 1994 filed by the Respondents herein for partition and separate possession in respect of the suit property which are mentioned in Schedule A and B of the Plaint. The Plaintiffs and the Defendants trace their rightto a common ancestor one Bhavanrao who had two sons Bapurao and Anandrao. Anandrao died unmarried whereas Bapurao had two sons Bajirao and Vinayakrao. The Respondents herein are the heirs of original Plaintiff Vinayakrao whereas the Defendants are the heirs of Bajirao. The original Plaintiff had filed the said suit for partition and separate possession of his ½ share in the suit property. Initially he demanded partition from Bajirao but on account of ill-health Bajirao avoided the same. Bajirao died in 1983. On the apprehension that the Defendant Nos.1 to 7 would get their names mutated in the revenue record, the original Plaintiff demanded his ½ share on 15/1/1984 in the suit property after effecting partition, since the Defendant Nos.1 and 2 denied the same, the Plaintiff filed the said suit. 3 3. The Defendant Nos.1 to 7 filed their written statement. The Defendant Nos.1 to 7 resisted the said suit by contending that the property at Baroda has not been included in the suit property. Accordingly to the Defendants the partition had already been taken place between the parties i.e Bajirao and Vinayakrao wherein the branch of the Plaintiff was allotted property as Baroda whereas the branch of the Defendants was alloted the properties at Mandve Tal.Satara. 4. Other Defendants i.e. Defendant Nos.11 to 14 who had purchased the suit properties from the Defendant Nos.1 to 7 also filed their written statement and contended that they are the bonafide purchasers from Bajirao. 5. The parties went to trial. The trial Court on the basis of the oral and documentary evidence on record rejected the case of the Defendants that there was earlier partition and held that the Plaintiff would be entitled to a decree of partition and possession. In so far as 4 the property at Baroda is concerned, the trial Court held that though the Plaintiff had admitted that the Defendants had ½ share in the said property, there was no material produced on record by the Defendants that the said property was an ancestral property or purchased out of the joint family nucleus. In far as the sale of the properties to the third parties is concerned, the trial Court recorded a finding that the same was not for legal necessity. The trial Court, therefore, by its Judgment and Decree dated 13/6/1995 decreed the said suit and in so far as sale of all agricultural lands by Bajirao is concerned, the trial Court decreed that the lands sold by the said Bajirao should be put to the share of the Defendant Nos.1 to 7. 6. Aggrieved by the Judgment and Decree dated 13/6/1995 passed by the trial Court, the Defendants carried the matter in appeal by filing Regular Civil Appeal No. 381 of 1995. The Lower Appellate Court confirmed the decree passed by the trial Court and thereby findings of the trial Court. 7. It is sought to be contended on behalf of the Appellants that 5 in view of the fact that the property at Baroda was not included in the suit properties, the said suit was not maintainable. It was further contended that the finding of the Courts below as regards the legal necessity is without taking into consideration the admission of the Plaintiff wherein he admitted that the properties were sold for the marriage expenses. 8. Considering the findings of fact recorded by the Courts below which are based on the material on record, in my view, there is no substance in any of the contentions raised on behalf of the Appellants. In my view, the above Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. 9. In view of the dismissal of the Second Appeal, the Civil Application No.65 of 2001 does not survive and the same is disposed of as such. 10. It appears that in view of the office objections the above Second Appeal has been dismissed as against the Respondents 6 Nos.2, 3, 4, 6 and 10 to 12 herein who are the purchasers from Bajirao. In terms of the decree the said lands sold have been directed to be from the share of Defendant Nos.1 to 7. In view of dismissal of the Appeal against the said Respondents, the Appeal cannot be proceeded in piecemeal manner against the other Respondents as then it would lead to an anamolous situation, inasmuch as in so far as the share of the Defendant Nos.2, 3, 4, 6 and some of the Appellants abovenamed, the decree is confirmed whereas in so far as the share of the Plaintiffs is concerned, the challenge subsists. In my view the same would be impermissible in the context of the decree being one for partition and separate possession. The above Appeal is, therefore, required tobe dismissed on the said ground also. [R.M.SAVANT, J]