1 SA No. 654 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 654 OF 2010 1 Ajinath s/o Nivrutti Andhale, Age 43 years, Occ. Agriculture, R/o. Limbodi, Taluka Ashti, District Beed. Appellants 2 Bhagwan s/o Nivrutti Andhale, Age 47 years, Occ. Agriculture, R/o. As above. 3 Nivrutti s/o Dhondiba Andhale, Died on 22nd December, 2008. 4 Sampat s/o Ajinath Andhale, Age 11 years, Minor, Under Guardianship of his mother Shobha Ajinath Andhale (Appellant No.6) 5 Sandip s/o Ajinath Andhale, Age 11 years, Minor, Under Guardianship of his mother, Shobha Ajinath Andhale (Appellant No.6) 6 Shobhabai w/o Ajinath Andhale, Age 32 years, Occ. Agriculture, Resident of As above. V E R S U S Sushil s/o Ajinath Andhale, Age 13 years, Occ. Education, Minor, Under Guardianship of his grandmother Chabubai w/o Karbhari Golhar, Age 54 years, Occ. Household, Resident of Bavi, Taluka Ashti, District Beed. Respondent Mr. G.K. Naik-Thigle, Advocate, holding for Mr. R.V. Deshmukh, Advocate for the appellants No.1, 3 to 6 Mr. K.D. Bade-Patil, Advocate for appellant No.2 Mr. V.M. Chate, Advocate for the respondent - sole 2 SA No. 654 of 2010 CORAM : A.V. NIRGUDE, J. DATED : 3rd March, 2011 ORAL JUDGMENT : 1. At this admission stage, this Second Appeal can be decided by following order. 2. Heard. 3. The appellant No.1 is admittedly father of the respondent. It is also admitted that the appellant No. 2 is the appellant No.1's brother and the original appellant No. 3 was the father of the appellants No. 1 and 2. The respondent while he was minor, filed suit in 1999 for partition of ancestral property. He said that his father Ajinath, uncle Bhagwan and grandfather Nivrutti formed joint family and have jointly in their possession the ancestral property. He said, due to untimely death of his mother, he went to reside with his maternal grandmother. He said that when he learnt that his father and uncle were about to dispose of the ancestral joint family property, he sought partition of the same and demanded separate possession of his share. The appellants came out with a case to oppose the suit that Ajinath, after the death of his first wife, married second time. The appellant No. 6 is his wife and the appellants No. 4 and 5 are his minor children born from the appellant No. 6. The suit was opposed on various grounds, such as, previous partition, some of the suit property being self acquired ones etc. However, the appellants did not enter witness-box and thus have failed to prove their case. On the other hand, the respondent's grandmother entered the witness-box and proved the respondent's case. The Courts below held that the respondent has proved that he has 1/6th share in the entire suit 3 SA No. 654 of 2010 property. The trial Court passed the decree on 19th April, 2004, whereas the appeal was dismissed recently on 6th July, 2010. 4. For the first time in this Court, the appellants contended that they are denied the opportunity to lead evidence and to prove their case. It seems, this plea is raised rather belatedly. After the decree was passed in 2004, the appellants did not file their first appeal for quiet some time, and belatedly after two years, they filed the same. Due to this delay, the learned Judge of the first appeal Court rejected their plea for recording additional evidence. However, in this case, there are pertinent and relevant questions of fact, which are required to be decided. These questions of fact remained undecided only because the appellants did not lead their evidence and further delayed the filing of the appeal. I am of the opinion that this litigation should be sent back to the trial Court so that the parties would get opportunity to lead their evidence and thereafter get the questions of fact decided on merits. However, looking to the delay that has occurred due to the latches on the part of the appellants, I would put them to terms for allowing the appeal. In my view, it is only the appellant Nos. 1, 4, 5 and 6 who should be saddled with costs. Looking to the legitimate claim of the respondent and since he has been kept away from enjoyment of his share of the ancestral property, I think, the appellants No. 1, 4, 5 and 6 should be saddled with costs of Rs.50,000/-. ORDER (1) On appellants No. 1, 4, 5 and 6 depositing costs of Rs.50,000/- in this Court on or before 11th April, 2011, the Judgments passed by both the Courts below shall 4 SA No. 654 of 2010 stand set aside and the case shall stand remanded back to the trial Court. (2) The learned Judge of the trial Court then shall re- draft the issues and allow the parties to lead fresh evidence. The learned Judge of the trial Court shall then decide the case on merits. (3) In case, the amount of costs is not deposited, as directed above, this Second Appeal shall stands dismissed. ( A.V. NIRGUDE, J. ) SRM/sa/654/10/3/3/11/ok