1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION SECOND APPEAL NO.326 OF 2007 WITH CIVIL APPLICATION NO.648 OF 2007 Shri Dashrath Keshav Gaikwad since deceased by his legal heirs and representative 1a- Lilabai Dashrath Gaikwad & ors : Appellans versus Shri Dnyaneshwar @ Dnyanoba Keshav Gaikwad since deceased by his legal heirs 1a- Smt.Indumati Dnyaneshwar Gaikwad and others. : Respondents. Mr.V S Gokhale for the Appellants Mr.Shriram S Kulkarni for the Respondents. CORAM : C.L.PANGARKAR, J. DATE : 4th JANUARY 2010 P.C. 1. Heard the learned counsel for the Appellants and the Respondents. 2. This Second Appeal has been preferred by the Original Defendants against the judgment and decree dated 3/3/2007 passed by the Adhoc District Judge-9 Pune whereby he allowed the Civil Appeal No.160 of 2000 filed by the Original Plaintiff and decreed the suit of the Plaintiff. 3. The Original Plaintiff had instituted a suit being Regular Civil Suit 2 No.193 of 1991 for partition and separate possession of the suit property. It was contention of the Original Plaintiff that the suit property was jointly acquired by him and his two brothers i.e. Defendant Nos.1 and 2. He had, however, shifted to another house because of the fact that the accommodation in his possession was found to be insufficient. The Defendant Nos.1 and 2 are said to be in possession of the suit property and the Plaintiff claims his share therein. 4. The Defendant No.1 contested the suit and contended that the entire suit property was purchased by him and the house constructed thereon was also constructed by him. 5. The learned Civil Judge, Junior Division, Khed, on the basis of the sale deed and contents therein came to a conclusion that the suit property exclusively belongs to the Defendant No.1 and holding so, he dismissed the Civil Suit No.193 of 1991 filed by the Plaintiff. 6. Aggrieved by the judgment and order passed by the learned Judge of the trial Court, the Original Plaintiff preferred an appeal being Civil Appeal No.160 of 2000 before the District Court, Pune. The learned Adhoc District Judge-9, Pune, who heard the said Appeal, however, found 3 that there were many other circumstances which were ignored by the learned Judge of the trial Court and he came to a conclusion, on the basis of those circumstances, that the suit property was jointly acquired and holding so, he decreed the said suit of the original Plaintiff. 7. Aggrieved by the said judgment and decree of the learned Adhoc District Judge-9 Pune the Defendants have preferred this Second Appeal. 8. The learned counsel for the Appellants/Defendants submitted before me that the judgment and order passed by the trial Court was in fact correct and the First Appellate Court did not properly appreciate the evidence on record. According to him, the learned Judge of the First Appellate Court should have in fact placed reliance on the contents of the document itself and he could not have recorded findings as against the contents of the said document. 9. The submissions of the learned counsel for the Appellants have no substance. The learned Judge of the First Appellate Court has rightly considered the circumstances suggesting that the suit property has been acquired jointly by the Plaintiff and the Defendants. He has also considered particularly the fact that the brother of the Plaintiff’s wife had 4 sent a Money Order to the Defendant No.1 in the year 1965 when the house was allegedly constructed. The Defendant No-1 has been unable to offer any explanation with regard to such Money Order having been sent to him and its utilisation. The learned Judge of the First Appellate Court has rightly considered this fact and has rightly held that the said money order sent by the plaintiff’s wife’s brother was only for the purpose of construction of the house. The learned Judge of the First Appellate Court has also considered the fact that each room has separate entrance and this itself suggests that each room was constructed for each of the brother and had the property belonged to the Defendant No.1, there was no need to have three separate entrances to the house. In the circumstances, I do not find that the the learned Judge of the First Appellate Court has wrongly appreciated the evidence and there is no perversity in the judgment and decree of the learned Judge of the First Appellate Court and the impugned judgment does not suffer from any such infirmity. In my view, there is no substantial question of law involved in this Second Appeal. Hence the Second Appeal is dismissed in limine. In view of dismissal of the Second Appeal, the Civil Application No.648 of 2007 filed by the Defendants for stay does not survive and it is accordingly disposed of. [C.L.PANGARKAR, J]