1 S.A.No.272_2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.272 OF 2010 Office Notes, Office Memorandum of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Ms. Ujawala Waychal, i/b. Mr. Vishwasrao S. Deokar, Advocate for the Appellants. Mr. Shrishail Sakhare, Advocate for Respondent Nos.1 & 2. CORAM : A.S.OKA, J. DATE : 24th November, 2011. P.C. 1. Heard learned counsel appearing for the appellants and learned counsel appearing for the Respondent Nos.1 & 2. The appellants are original defendant No.1 and 3. The first Respondent is the original Plaintiff. It is alleged in the suit that the predecessor of the parties Shankar V. Dake died on 26th April, 1999. The first appellant is the Widow of said Shankar and the 2nd appellant is one of the daughters of said Shankar. Respondent Nos.1 and 2 are also the daughters of deceased Shankar. 2 S.A.No.272_2010 2. The appellants contested the suit. One of the contentions raised was that the first appellant will be entitled for the 44 paise share. It was alleged that partition of the suit property was not possible as the area of the property is very small. 3. The trial Court decreed the suit by passing a decree for partition holding that parties to the suit have 25% share each. An appeal was preferred before District Court only by the second appellant which has been dismissed. 4. The first contention of the learned counsel appearing for the appellants is that considering the fact that the area of the suit property is 29.5 Sq. meters, partition by metes and bounds is impossible. The second contention is that the suit property was originally belonging to the brother of deceased Shankar and the same was gifted by the brother of deceased Shankar to the first appellant and therefore, the share of the first appellant is 50%. 3 S.A.No.272_2010 5. As far as second contention is concerned there appears to be no evidence adduced by the appellants. As far as first contention is concerned, the trial Court has only declared the shares of the parties. In the proceedings for effecting partition, Court commissioner will have to be appointed to suggest partition and in those proceedings, the issue whether the property is capable of partition by metes and bounds will have to be decided. If the concerned Court finds that, the partition by metes and bounds is not feasible, the Court is bound to proceed in accordance with the provisions of law. This clarification is already issued by the appellate Court. 5. No substantial question of law arises. Subject to what is observed above, no interference is required. Hence Second Appeal is dismissed. C.A. does not survive. Hence it is disposed off. [ A.S.OKA, J ]