1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.886 OF 2009. Smt.Hirabai Sonu Raskar @ Hirabai Ambadas Kaladkar. ... Appellant. Versus Smt.Ashabai Bhagwan Raskar and another. ... Respondents. ... Mr.A.S.Zarekar, advocate for the appellant. ... CORAM : V.R.KINGAONKAR,J. Date : 15.12.2009. PER COURT 1. Heard counsel. 2. The Respondent No.1 filed suit for partition and separate possession vide (Spl.C.S.No.9/1996). There is no dispute about the relationship between the parties. The 2 Respondent No.1 is a daughter-in-law of deceased defendant No.1 Sonu. The defendant No.2 Balu Sonu Raskar is another son and defendant No.3 is daughter of said Sonu. It appears that deceased Sonu was the holder of the property shown in the suit. According to the plaintiff, after death of her husband, namely Bhagwan, she was harassed by the defendant No.2 Balu and was driven out from the matrimonial house. The defendant No.3 i.e. the present appellant lateron fraudulently obtained a gift dated 1.5.1995 from her father i.e. the defendant No.1 Sonu in respect of some of the part of the suit property. That gift-deed was not intended to be acted upon and is a hallow document. 3. It appears that original defendant No.1 Sonu died during pendency of the suit. The original defendant Nos.2 and 3 did file their pleadings. They did not participate in the trial. They did not adduce any evidence. The trial Court decreed the suit. The first appellate Court confirmed the decree while dismissing the appeal bearing (RCA No.117/2007). 3 Thus there are concurrent findings of facts. Mr.Zarekar, learned advocate would submit that the appellant was not given sufficient opportunity to prove the gift-deed. He referred to observations in "Abdul Raheem Vs. Karnataka Electricity Board and others" (2008 AIR SCW 463). The Apex Court held that where irrelevant facts were considered while giving the finding, it gave rise to substantial question of law. He also referred to "Vishwas Balu and others Vs. Ghasiram Ramratan Jajum and others" (AIR 1975 Bombay 278). It is held by Single Judge of this Court that when the judgment is not in compliance of Order 41 Rule 31 of the C.P.C., the matter could be remanded. 4. The fact situation in the present case is altogether different. The appellant is entitled to claim partition in view of undisputed relationship. The appellant, however, failed to prove due execution of the gift-deed by deceased defendant No.1 Sonu in her favour. There is no reason as to why the appellant did not file her pleadings and made no attempt before the trial 4 Court to lead evidence. In view of the concurrent findings of the facts of the Courts below, I have no hesitation in holding that the Second Appeal is outside scope of Section 100 of the C.P.C. The Apex Court in "Gurdev Kaur and others Vs. Kaki and others" (AIR 2006 Supreme Court 1975), held that even though the findings of facts may be grossly incorrect, yet, the question of appreciation of evidence can not be treated as substantial question of law. In view of the matter, I find that the Second Appeal is nothing but an attempt to protract giving due share to the Respondent No.1 (plaintiff), who is a widow. Hence, the appeal is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa88609