1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.482 OF 2009. Maruti S/o Vithoba Arote ... Appellant. Versus Smt.Shantabai W/o Mohan Arote and others ... Respondents. ... Mr.R.D.Bhalerao, advocate for the appellant. Mr.L.V.Sangit, advocate holding for Mr.A.N.Nagargoje, advocate for the Respondents. ... CORAM : V.R.KINGAONKAR,J. Date : 11.12.2009. PER COURT 1. Heard learned counsel. 2. The suit (RCS No.368/2001) was filed by Respondent Nos.1 and 2 for partition and separate possession. The Respondent No.1 Shantabai is widow of brother of the appellant. The appellant was original defendant No.1 in the suit. 2 According to the plaintiffs, the appellant was wrongfully denied them due share which they were lawfully entitled in the suit properties. The appellant contended that in 1976, husband of the plaintiff and himself got separated by way of partition. It was oral partition. The trial Court came to the conclusion that the story of oral partition was incorrect and put forth with a view to deny the lawful claim of the plaintiffs. It appears that the plaintiffs adduced necessary evidence in support of their claim. The appellant simply filed original sale deed dated 22.6.1992 (Exh.64) in order to show that he had purchased one of the suit land. The trial Court further held that the said land was amalgamated in the ancestral land and was purchased by utilising the income derived from the ancestral land. It appears that no satisfactory evidence was adduced regarding the previous partition effected in 1976 between the husband of the plaintiff No.1 and appellant. The appellant did not enter the witness nor examined any other witnesses in support of so-called previous partition of 1976. 3 3. The appellant preferred appeal against the partition decree. There was a considerable delay of 596 days. He stated that on the very next day of the impugned decision, he had applied for certified copies of the judgment and the decree. He received the copies on 2.12.2006. Though he was aware that the appeal should have been filed on or before 2.1.2007, yet, it could not be filed because his advocate, namely, Sudamrao Aher was suffering from diabetes and problems of eye-sight. The lawyer was required to be operated lateron and could not attend the work. The appellant further submitted that lastly somewhere in the third week of August 2008, he came to know that the lawyer became blind and, therefore, there was delay in filing of the appeal. 4. The first appellate Court rejected the delay condonation application, holding that the grounds stated in the application were not duly proved. The fall down of such dismissal of delay condonation application was that the appeal itself came to be dismissed. 4 5. Mr.Bhalerao would submit that reasons shown by the applicant could be considered on sympathetic ground. He would submit that liberal approach is taken in such a matter. He contended that the appellant was not likely to gain by committing delay. He submitted further that it would be in the interest of justice to allow the condonation of delay subject to payment of reasonable costs. 6. This is a case in which the appellant was fully aware of the impugned judgment. He was cognizant of the fact that the appeal was required to be filed within the prescribed period of limitation period. He did not file affidavit of the concerned advocate Mr.Sudamrao Aher, in support of the application. He did not file any Medical Certificate to show that said advocate Mr.Sudamrao was suffering from opthalmolical problems during the relevant period and had to be operated which lateron resulted into his blindness. What transpires from the record is that appellant, somehow or the other wanted to deny the due share to the widow of his sister and 5 the niece. They are illiterate women. The unnecessary protraction of the litigation for partition can not be permitted. Under the circumstances, I do not find any substance in the Second Appeal. Hence, it is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa48209