1 SA 363.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 363 OF 2010 _____________________________________________________________ Office Notes, Office | Memoranda of Coram, Court's or Judge's orders appearances, Court's | orders or directions and Registrar's orders | _____________________________________________________________ Mr. A.N.Nagargoje, Advocate for appellant. ........................... CORAM : S.V.GANGAPURWALA, J. DATE : 21/12/2010 PER COURT : 1. This is defendant’s Second Appeal. 2. The present respondent/plaintiff had filed Suit for partition and separate possession. Both the Courts decreed the Suit. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mr. Nagargoje, learned counsel for the appellant contended that the Courts below should have relied on the evidence, which is not impeached, which shows that the deceased Shankar 25 years back had taken the amount in 2 SA 363.2010 lieu of his share. But, this aspect has not been considered by the Courts below. According to the learned counsel, defendant no. 14 is a Society registered under the Co-operative Societies Act [ For short, ‘ said Act ’ ] and as per Section 164 of the said Act, no notice has been issued to it and as such the Suit itself is not maintainable. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. The fact that the properties being ancestral properties, is not disputed. The appellants had come with the specific case that the deceased Shankar had relinquished his share by accepting the amount 25 years back. In light of the same, the plaintiffs would not be entitled to claim any relief , but the said pleadings have not been proved. There is no evidence to substantiate this fact. Both the Courts have discussed the evidence in this regard. There is no perversity in the appreciation of the evidence. So far as non maintainability of the Suit against defendant no. 14 for non issuance of notice is concerned, defendant no. 14 did not file any Written Statement and was absent. As defendant no. 14 did not raise that plea, the plea of issuance of notice is deemed to be waived. 6. In light of the above, the Second Appeal does not involve any substantial question of law, 3 SA 363.2010 as such is dismissed, however with no order as to costs. [ S.V.GANGAPURWALA ] JUDGE knp/SA 363.2010