1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1614 OF 2004 Santosh s/o Chandrabhan Zawre & another .. APPELLANTS VERSUS Chandrabhan Chimanji Zawre & others .. RESPONDENTS Shri V.D. Hon, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. DATE : 5 th August, 2009. PER COURT : 1 Appellants / original plaintiffs have approached this court raising exception to the judgment and decree passed by the 2 nd Additional District Judge, Ahmednagar dt. 5-3-2003 in Regular Civil Appeal no. 300/2000. 2 First appellate court while allowing the appeal has set aside the judgment and decree passed by the trial court on 21-9-2000 in Regular Civil Suit no. 248/1996. Suit was presented by plaintiffs claiming partition and separate share in respect of the property belonging to defendant no. 1. 2 Plaintiff contended that the property in the hands of defendant no. 1 is ancestral property and he being the son of defendant no. 1 is entitled to have share in the property. Defendant no. 1 has controverted the contentions raised by plaintiff and contended that the disputed property is self acquired property and not the ancestral property as contended by plaintiff. It is the contention of defendant that during his lifetime plaintiff is not entitled to partition. 3 Trial court even after holding that the property in the hands of defendant no. 1 is a self acquired property, proceeded to grant decree of partition and separate possession by placing reliance on the judgment in the matter of Raghunath Nana Patil vs.Nana Rama Patil and others reported in 1986 Mah..R. 529 as well as decision by this court rendered in the matter of lamibai Nagappa Matiwadar and others vs. Limbabai Nagappa Matiwadar reported in 1984 Mh.L.R. 310. Defendant preferred appeal raising challenge to the judgment and decree passed by the trial court being Regular Civil Appeal no. 300/2000. Appellate court has concurred with the findings recorded by the trial court in respect of nature of the property in the hands of defendant no. 1 being his self acquired property. Contention raised by plaintiff that the property in the hands of defendant no. 1 is ancestral 3 property has been turned down by the first appellate court. The first appellate court has taken a view that plaintiff will not be entitled to claim share by way of partition during life time of defendant no. 1 in respect of the self acquired property. First appellate court relied upon the judgment in the matter of Shantaram Tukaram and another vs. Smt. Dagubai Tukaram and others reported in AIR 1987 Bombay 182 and reached conclusion that plaintiff during the life time of defendant no. 1 will not be entitled to partition in respect of the self acquired property in the hands of defendant no. 1. it is to be noted that the decision relied upon by the trial court in the matter of Raghunath has been over ruled by the Division Bench of this court in the case reported in AIR 1987 Bombay 182. The view adopted by the trial court based on the judgment which has been over ruled by subsequent decision, therefore is not sustainable. The view adopted by the appellate court is based on proper application of law. No substantial question of law arises for consideration in the appeal. 4 Learned counsel for the appellants has made a grievance that although cross objection was raised by the appellants before the first appellate court raising objection to the issue decided by the trial court relating to nature of property, the same has not been dealt with by the 4 appellate court. On perusal of the judgment passed by the appellate court, it does appear that point no. 2 formulated by the appellate court is as below: Do the plaintiffs prove that the suit property is joint Hindu family property of the plaintiffs and defendant no. 1 to 3 ? . Appellate court answered the point in negative. Appellate court also formulated a point as to : Whether defendant no. 1 prove that the suit property is his self acquired property. . This point is answered in affirmative. Thus, contention raised in the cross objection by the appellants herein before the first appellate court has been dealt with by the court while dealing with the matter. However, no specific order rejecting the cross objection has been passed by the trial court. Lapse on the part of the first appellate court clearly appears to be a matter of technical failure and the same can be corrected while dealing with the second appeal. As the contentions raised by the original plaintiffs / respondents before the first appellate court in the cross objection have been dealt with by the first appellate court, no prejudice is caused to the plaintiffs on account of failure of the first appellate court to pass specific order on the 5 cross objection. In view of the answer given to point no. 2 while dealing with the appeal, contentions raised by the plaintiff in cross objection before the first appellate court do not survive. In this view of the matter, cross objection presented by the appellants before the first appellate court shall be deemed to have been rejected. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed. 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1614.04.odt