-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. C.A.NO.2158/2008 IN S.A.ST. NO.1706/2008 & C.A.No.7287/08. Smt. Kusumbai Kawdoo Poreddiwar -versus- Laxmibai Wasudeorao Channawar ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 15, 2009. The original defendant no.1 [mother], in suit has filed this Second Appeal challenging the concurrent judgment and decrees delivered by the Court below, in suit filed by present respondent no.1 for partition and separate possession. Respondent no.1 is married daughter. As there is delay of about 2 years and 248 days in filing Second Appeal, there is a prayer for condonation of delay. It appears that son of present appellant by name Santosh expired during the pendency of Regular Civil Appeal and his legal heirs are sought to be brought on record in present matter and by another application there is request to condone that delay. After hearing the parties on earlier occasion it was thought necessary to find out whether any -2- substantial question of law arise in this Second Appeal. Advocate Shri Chandurkar, has pointed out that after adjudication by the Appellate Court as the present appellant was unwell and bedridden, she could not contact the Advocate and could not arrange to file appeal. The reasons put forth are not seriously disputed by the respondent no.1. Similarly, it appears that in Regular Civil Appeal the interest of present applicant / mother and deceased Santosh were similar and as such the present applicant herself was representing interest of said son. It is brought to my notice that infact written statement was filed by the present applicant/appellant and it was adopted by her sons including deceased Santosh. It is therefore clear that interest of present applicant and deceased Santosh was not hostile to each other. In these circumstances, I have examined the controversy on merits. Advocate Shri Joshi appearing for respondent no.1 plaintiff has stated that separate share of married daughter has been carved out in accordance with law and there is no perversity in any of the judgments. Advocate Shri Chandurkar, on the other hand contends that there is no application of mind by -3- the Lower Appellate Court. He relies upon the judgment in the case of Santoshi Hajari .vrs. Purushottam Tiwari (2001 [2] Mh.L.J. 786), to contend that the Appellate Court has failed to give independent and proper reasoning and has not come into close quarters with reasoning given by the Trial Court. He has invited attention to the chart prepared by the appellant in substantial question no.[a] of the memo of second appeal to show how the Lower Appellate Court has drawn word to word from the judgment of trial Court. Advocate Shri Joshi, also does not dispute that the Lower Appellate Court has drawn most of its judgment from the judgment of trial Court. However, Advocate Shri Joshi, states that, that by itself is not sufficient to hold that there is no application of mind by the Lower Appellate Court. It is to be noted that it is not the case before this court that the Lower Appellate Court did not hear arguments of counsel. The Lower Appellate Court has also given its reason but then it has used the words of trial court. The arrangement of paragraph made by the Lower Appellate Court in the judgment clearly demonstrate the application of mind. Not only this, a careful perusal of the judgment of Lower Appellate Court also shows that it has in some paragraphs -4- expressed its independent opinion and instance given of para 19 where it concludes that case of defendant is based on paradoxical footing. As on merits, the consideration is not shown to be either erroneous or perverse and allotment of share to the daughter [present respondent no.1] is in accordance with the law. I do not find that any substantial question of law arises in the matter for consideration. With the result, though the Civil Applications are allowed and delay is condoned, the Second Appeal is dismissed. No cost. JUDGE Rgd.