1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.219 OF 2007 WITH CIVIL APPLICATION NO.1055 OF 2006 Pawanlal Popatlal alias Rajaram Shah : Appellant versus The Manager, The Karad Urban Co-op.Bank Ltd. &ors. : Respondents. Mr.Uday P. Warunjikar for the Appellant. Mr.N.J.Patil for Respondent Nos.1 and 2. CORAM : R.M.SAVANT, J. DATED : JULY 17, 2008. P.C. 1.? The above Second Appeal arises out of the Judgment and Decree dated 3.2.2006 passed by the 1st Ad-hoc Additional District Judge, Satara in Regular Civil Appeal No.15 of 2002 by which the 2 Judgment and Decree dated 2.3.1996 passed by the Joint Civil Judge, Senior Division, Satara in Special Civil Suit No.89 of 1991 came to be set aside. 2.? The Appellants are the original Plaintiffs in Regular Civil Suit No.89 of 1991 which was filed by them for partition and declaration that the Award passed by the Co-operative Court in respect of the loan taken by Defendant No.2 Shri Ajitkumar could not be executed against the properties of the Plaintiffs as the partition/family arrangement had taken place between the parties some time in the year 1972. 3.? The trial Court, on the basis of the oral and documentary evidence which was before it and more especially taking into consideration the fact that the said Ajit Kumar had sold some of the properties in the year 1976, came to a conclusion that there was a partition amongst the parties and that the said properties were being separately enjoyed by them and, therefore, issued a declaration that Defendant No.2 i.e. the said Ajitkumar had no right 3 or title in the suit properties i.e. Survey Nos.72 and 90 situated at village Husenpur and in all the house properties situated at Khatau. A further declaration was issued that the loan obtained by the Defendant Nos.1 and 2 from the Defendant Nos.6 and 7 was not binding on the share of the Plaintiffs in the suit properties. 4.? Being aggrieved by the said Judgment and Decree dated 2.3.1996, the Defendant No.6 Bank i.e. The Respondent No.1 abovenamed filed an appeal being Regular Civil Appeal No.15 of 2002. The said Regular Civil Appeal came to be allowed and the Judgment and Decree passed by the trial Court came to be set aside. 5.? Pertinently in the Lower Appellate Court the case of partition was given up by the Appellants herein by filing a Purshis to that effect. The lower Appellate Court on the appreciation of evidence that was before it, came to a conclusion that the theory of partition propounded by the Plaintiffs could not be accepted. The lower Appellate Court observed that since Ajitkumar was minor in the year 1972 or 1974 when the alleged partition took place, it was 4 impossible to believe that his share was separated in the year 1972. The lower Appellate Court further observed that it was also impossible to believe that the said Ajitkumar has started separate business when he was minor. The lower Appellate Court, taking into consideration the fact that the Plaintiffs had waived their claim for partition, observed that the intention in filing the said suit was not to effect partition but to deprive the Defendant No.6 Bank from recovering the loan amounts. The lower Appellate Court, therefore, concluded that there was nothing on record to show that there was partition of the joint family properties and, therefore, observed that the Defendant No.6 Bank was entitled to sell the suit properties in auction. 6.? The lower Appellate Court, as indicated above on the re- appreciation of evidence, has arrived at the said findings. In my view, there is substance in the observation of the lower Appellate Court that the suit has been filed merely filed to stall the recovery proceedings filed by the Defendant No.6 Bank. 5 7.? In my view, the challenge raised in the above Second Appeal does not raise any substantial question of law. The above Second Appeal is accordingly dismissed. 8.? In view of dismissal of the above Second Appeal, the Civil Application No.1055 of 2006 does not survive and the same is disposed of as such. [R.M.SAVANT, J]