1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.1283 OF 2004 WITH CIVIL APPLICATION NO.409 OF 2003. Uttam S/o Sheshrao Shinde and others ... Appellants. Versus Rukhminibai Digambar Kadam died through L.Rs. Digambar Narayanrao Kadam and others ... Respondents. ... Mr.S.S.Nirkhee, advocate for the appellants. ... CORAM : S.V.GANGAPURWALA,J. Date : 06.09.2010. PER COURT 1. The appellants assail the judgment of the Court below, wherein the suit filed by the 2 plaintiffs for partition and separate possession has been decreed. 2. Mr.Nirkhee, learned counsel for the appellants submitted that the Courts below have not taken into consideration the defence raised by the present appellants in proper perspective and have committed an error while decreeing the suit for partition and separate possession. 3. He also further contends that the appellate Court has enhanced the shares though the plaintiffs had not filed any appeal or cross- objection. According to him, this exercise suo- motu by the appellate Court is not permissible in law and the said judgment suffers from patent illegality. 4. Perusal of the judgment shows that the shares calculated by the appellate Court is proper, even the relationship has been considered by the Courts below and thereafter decreed the suit. It has been held that the the plaintiff No.2 is the first wife of the defendant No.1. 3 5. Regarding the contention of Mr.Nirkhee, that appellate Court could not have increased the shares though no cross-objections were filed can not be sustained in view of provisions of Order 41 Rule 22 of the C.P.C. The appeal being the continuation of the suit, the appellate Court has every power to deal with the appeal and even if the cross-objection has not been preferred, the appellate Court can vary the share. In light of the above, the judgment has not suffered from any illegality. No substantial question of law is involved. As such the Second Appeal is dismissed with no order as to costs. 6. In view of dismissal of the Second Appeal, the Civil Application does not survive and it is accordingly disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa1283.04 4