1 S.A.No.1608/05 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.1608 OF 2005. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 14.12.2010. 1. This is plaintiff's Second Appeal. The plaintiff had filed a suit for possession and for partition in respect of the suit property claiming half share. The Courts below have given a specific finding that the property is an ancestral property but as three sisters are also entitled for the share and they are not been joined as parties, the Court has dismissed the suit. 2. Mr.Milind M. Patil (Beedkar), learned counsel for the appellant contended that the suit was for partition. When the Courts below came to the conclusion that it is an ancestral property 2 S.A.No.1608/05 and the plaintiff had a share, it could not have dismissed the suit only on the ground that sisters have not been added as parties. The Courts could have moulded the relief. The said sisters should have been added as parties. Even the Court U/o 1 Rule 10(2) of the C.P.C. has suo-motu powers to add parties. The learned counsel further contended that the decree that could be passed could be a preliminary decree and the shares could have been determined. 3. No doubt, the Court below has come to a categorical conclusion that the suit property is an ancestral joint family property of the plaintiff and the defendant. It has also come on record that the plaintiff and defendants also have three sisters who are entitled for share in the said property. In absence of the sisters, no effective decree could have been passed as it is a trite law that in absence of all the heirs, the decree for partition and separate possession can not be passed. The Courts having held the share of plaintiff and that the suit has been dismissed on technical ground, there is no impediment for the plaintiff to take 3 S.A.No.1608/05 appropriate proceedings as would be permissible in law. 4. The Second Appeal accordingly is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.14.12.2010. asp/office/sa1608.05 4 S.A.No.1608/05