1 SA 137.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 137 OF 2010 Arun S/o Shrikishan Agrawal & Oths. .... APPELLANTS V E R S U S Satyanarayan S/o Shankarlalji Agrawal & Oths. .... RESPONDENTS Mr. Amol Sawant, Advocate for the appellant. Mr. A.S.Bajaj, Advocate for the resp. no. 1 to 4. Mr.S.J.Nandode,Advocate for the resp. no. 7 to 10. CORAM : S.V.GANGAPURWALA, J. DATE : 21/12/2010 ORAL ORDER : 1. This is defendant’s Second Appeal. The plaintiffs had filed Suit for partition and separate possession in respect of the suit property, which came to be dismissed. The plaintiff preferred Appeal. The lower appellate Court allowed the Appeal and decreed the Suit. The defendants have assailed the said Judgment in the present Second Appeal. 2. Mr. Amol Sawant, learned counsel for the appellant submits that the suit property was already partitioned. The plaintiffs had received Rs. 10,000/- and had relinquished their share. It is a fact that since 1969-1970, the name of defendants appeared in the relevant revenue 2 SA 137.2010 record and defendant no. 1 was paying the taxes and the Suit is filed after 35 years. This conduct itself proves the theory of defendant no. 1 about the partition. The learned counsel further contended that even in the pleadings in the Suit which was filed by defendant no. 1 at Washim, the present plaintiffs in their Written Statement had contended about the partition. In the present Suit also, the plaintiffs jointly had contended about the partition. In view of this over-whelming evidence and the circumstances, the lower appellate Court could not have set aside the finding of fact of the trial Court. According to the learned counsel, the lower appellate Court has not taken into consideration this corroborative piece of evidence and the lower appellate Court has harped much on some variance in the evidence, but the same is also not inconsistent. According to the learned counsel, the Court below has failed to consider the relevant aspect of the matter. 3. Mr. Nandode, learned counsel for the appellant contends that defendant nos. 8 and 9 are bonafide purchasers of the suit property for valuable consideration. They have purchased suit property prior to the filing of the Suit. The lower appellate Court has not even framed point for determination to that effect. As such, the Judgment of the lower appellate Court is perverse to that extent. The learned counsel has also taken me through the pleadings in the Written Statement to contend that he being the bonafide purchaser, his rights need to be protected. 4. Mr. Bajaj, learned counsel for the plaintiffs submitted that there is inconsistency between the pleadings and proof of the defendant. 3 SA 137.2010 The plaintiffs have no where accepted the concept of partition. More over, the theory of defendant is inconsistent. In the Written Statement, the defendants contended that partition in respect of the suit property took place during the life time of the father, whereas the evidence which is sought to be produced, was to the effect that partition has taken place after the death of the father i.e. in the year 1967-68. No explanation is put-forth. Even D.W. 3, who was examined to prove the partition, had stated that in fact plaintiff no. 1 had sold his half share to the defendant for Rs. 10,000/-. This is not the case in the Written Statement. According to the learned counsel, the lower appellate Court has rightly come to the conclusion. 5. With the assistance of the learned counsel, I have gone through the Judgments. 6. The perusal of the Written Statement shows that the defendant has come with the case that there was a partition between plaintiff no. 1 and defendant no. 1 in respect of the suit property and plaintiff no. 1 had relinquished his share by accepting Rs. 10,000/-. The plaintiffs in the present case apart from plaintiff no. 1 are the wife and daughters of Shankarlal. It is not disputed that the suit property was an ancestral property. When there is no case of partition being effected in respect of the said property between the other plaintiffs and the defendants, then it goes without saying that those plaintiffs have legitimate right to claim partition. The plea of ouster is also not taken. More over, no case is made out regarding the other plaintiffs except plaintiff no. 1. So far as the 4 SA 137.2010 theory of partition as put-forth by the defendants between plaintiff no. 1 and the defendants is concerned, the same is based on circumstances. No specific date of partition is put-forth. More over, in the pleadings it was pleaded that the partition had taken place during the life time of father, who died in the year 1964 and thereafter in the evidence it was tried to be suggested that the partition has taken place in the year 1967-68. There is no proof of payment of Rs. 10,000/- to plaintiff no. 1. Even D.W. 3 has taken different stand in the evidence, wherein she says that plaintiff no. 1 has sold his share by accepting Rs. 10,000/-. The lower appellate Court has considered all these anomalies and has arrived at possible conclusion. The purchasers have also nowhere pleaded about the purchase from the ostensible owner. They have also nowhere put-forth the grounds in the Written Statement about making an enquiry prior to purchase. In fact it is common Written Statement filed by them along with other defendants. In absence of plea of purchase from an ostensible owner, the point for determination not being framed by the lower appellate Court would not be relevant. Without pleadings, the lower appellate Court could not have decided any such point for determination. 7. In light of the above, the conclusion drawn by the lower appellate Court is a possible conclusion. The second Appeal can not be entertained only on the ground that some other conclusion may be possible as has been held by the Apex Court in the case of Vidyadhar V/s Manikrao & Others reported in AIR 1999 Supreme Court – 1441. 5 SA 137.2010 8. In light of the above, the Second Appeal being sans substantial question of law, is dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, Civil Application does not survive and is disposed of. [ S.V.GANGAPURWALA ] JUDGE knp/SA 137.2010