SA. 356-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 356 OF 2011 Jaywant Nivrutti Pawar ...Appellant Vs. Bhagirthibai Nivrutti Pawar & Anr. ...Respondents *** Mr. Sugandh B. Deshmukh, for the Appellant. Mr. A. B. Jadhav, Power of Attorney, for Respondent Nos. 1 & 2. *** CORAM: V. M. KANADE J. DATE : JULY 8, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the appellant, and the Power of Attorney Holder for respondent Nos. 1 & 2. The appellant herein is the original defendant. A suit was filed by the plaintiff for partition and separate possession. A preliminary decree was passed in favour of the plaintiff and the said preliminary decree has attained finality. Thereafter execution proceedings commenced, a Commissioner was appointed for the purpose of effecting partition and he submitted his report. This report was challenged by the appellant SA. 356-11 - 2 - herein and it was contended that so far as house property is concerned, since the appellant is residing in the said house, he may be permitted to retain the said house and the other house where the plaintiff is residing may be permitted to be retained by her. 2. It is contended that the appellant would like to construct a wall which had fallen down and make it habitable. This arrangement is objected to by the plaintiff on various grounds. The trial court after taking into consideration various facts did not accept the application filed by the appellant herein. This order was confirmed by the lower appellate court. In my view, no substantial question of law is raised in the present Second Appeal. The Commissioner has taken into consideration the various factors, and therefore, it cannot be said that the said partition is not equitable, as alleged by the appellant. The suit proceedings are pending since 1987 and the defendant is an old lady, who is now residing in the farm house, which is also far away from the village. Both the courts below have observed that it would be difficult for the plaintiff to reside there. Hence, no case is made out for interfering with the concurrent finding of fact recorded by both the courts below, while exercising jurisdiction under Section 100 of the Civil Procedure Code. Second Appeal is, therefore, dismissed. SA. 356-11 - 3 - 3. Learned counsel appearing for the appellant seeks stay of the execution proceedings, since the appellant is intending to challenge the order of this Court. The impugned decree may not be executed for a period of six weeks from today. [ V. M. KANADE J.]