1 S.A. 262 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 262 OF 2010 with CIVIL APPLICATION No. 5636 OF 2010 Namdeo S/o Gangaram Chandane & others Appellants V E R S U S Jayshree W/o Govind Shewale Respondent Mr. A.S. Deshmukh, Advocate for appellants Mr. T.J. Poul, Advocate for respondent (absent) CORAM : S.V. GANGAPURWALA, J. DATED : 7th April, 2011 PER COURT : 1. This is defendants Second Appeal. The Ori plaintiff / present respondent had filed a suit for partition and separate possession. The trial Court decreed the suit. The defendants preferred an appeal. Appellate Court also dismissed the appeal, confirming the Judgment and Decree passed by the trial Court. Aggrieved thereby the defendants have filed the present Second Appeal. 2. Shri A.S. Deshmukh, learned counsel for the appellants strenuously contended that the plaintiff was, in fact, not entitled for 2 S.A. 262 of 2010 any relief in as much as plaintiff made a wrong statement that the mother is dead, whereas in the evidence it is proved that her mother is alive and married with some other person. The learned counsel contends that as the mother is alive, the plaintiff not be entitled to share, as granted by the Courts below. 3. It is further submitted by the learned counsel that all the properties were not included in the suit as such suit is not maintainable for the relief of partition. 4. The learned counsel further contended that even the purchasers of the properties were not made party to the suit and hence, suit suffers for non-joinder of necessary parties. 5. With the assistance of learned Counsel, I have gone through the judgment and also written statement filed. The defendants in their written statement itself have categorically stated that properties bearing Survey No. 38/1 survey No. 11-A-2 and survey No. 11-A-1, were sold for legal necessity. When the defendants themselves come with the case that, in the year 2001 the properties were sold for legal necessity, then in such circumstances, naturally said properties could not be available for partition. Regarding other contention that the 3 S.A. 262 of 2010 mother was alive who has remarried, and in absence of other parties suit could not be tenable, the said contention would not be sustainable in as much as the mother has no where laid the claim for her share. Even the defendants in the appeal memo before the lower appellate Court had not taken up this ground interalia had given up this plea. No evidence is laid by the defendants in this regard. Balasaheb’s share would devolve upon the plaintiff. The lower appellate Court has considered this aspect while delivering the Judgment. 6. The Courts below have taken up a plausible view. The defendants would be entitled for half share is not a disputed fact. In the light of the same, Courts below have not committed any error, while passing the impugned Judgment and Award. Second Appeal, being sans substantial questions of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, Civil Application No. 5636 of 2010, does not survive and the same is also disposed of accordingly. ( S.V. GANGAPURWALA, J ) SDM*262.10SA/070411 4 S.A. 262 of 2010