SA.449-84 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 449 OF 1984 Bhavu Mahadeo Kamble (Since deceased, ) represented through the Legal Heirs ) 1. Bapu Bhau Kamble, ) 2. Gajanan Bhau Kamble, ) 3. Shankar Bhau Kamble, ) 4. Mrs. Rukmini Mahadeo Kamble ) 5. Sou. Janabai Bhujinga Kamble, ) 6. Mrs. Chandrabhaga Shivaji Khade, ) 7. Mrs. Hirabai Bhau Kamble ) All resident of Haripur, Taluka Miraj ) Sangli ) ...Appellants Vs. Dhondi Dnyanu Bansode (Since deceased, ) represented through Legal Heirs ) 1. Ramchandra Dhondi Bansode, ) (Since deceased, represented through ) Legal Heirs) ) 1A. Mrs. Jayshri Ramchandra Bansode ) 1B. Sou. Shanibai Popat Karoble, ) 1C. Mr. Bapu Ramchandra Bansode ) (Second Appeal stands dismissed ) as per order dated 22-3-2010) ) 2. Sou. Sulabai Yadu Kamble ) (Deleted, as per order passed in ) Civil Application No. 74 of 2010) ) 3. Sou. Shantabai Shripati Kamble, ) SA.449-84 - 2 - Age 50 years, R/o. Ichalkaranji, ) Taluka Shirol, District Kolhapur. ) 4. Sou. Kantabai Santaram Bavadekar, ) R/o. Laxmipuri, Kolhapur, ) District Kolhapur. ) 5. Mrs. Rahibai Dhondi Bansode, ) (Since deceased represented through ) Legal heirs) 5.1. Ramchandra Dhondi Bansode ) (Since deceased represented through ) Legal heirs) 5.1.a. Mrs. Jayashri Ramchandra Bansode, ) 5.1.b. Sou. Shanibai Popat Kambale ) 5.1.c. Mr. Bapu Ramchandra Bansode ) (Second Appeal stands dismissed as ) per order dated 22-3-2010.) ) Respondent Nos. 5.1.a & 5.1.c are ) residing at Haripur, Taluka Miraj, ) District Sangli AND Respondent ) No. 5.1.b is resident of Indira ) Zopadpatti Ichalkaranji, Kolhapur ) 5.2. Chandrakant Dhondi Bansode ) (Since deceased represented through ) Legal heir) 5.2.a Alka Chandrakant Bansode ) (Second Appeal stands dismissed, as ) per order dated 22-3-2010. ) ...Respondents *** Mr. V. S. Gokhale, for the Appellants. None for the Respondents. *** SA.449-84 - 3 - CORAM: V. M. KANADE J. DATE : JANUARY 27, 2011 ORAL JUDGMENT 1. Heard the learned counsel appearing for the appellants. None appears for the respondents. Almost 26 years have passed and still the Second Appeal is pending in this Court. A civil suit was filed in the year 1971. The appellant is original plaintiff. 2. The appellant is original plaintiff and respondent is the original defendant (hereinafter parties are referred to as the plaintiff and defendant). The plaintiff filed a suit for declaration and injunction against the defendant in respect of suit property CTS No 594, situated at Haripur, taluka Miraj. The trial Court decreed the suit and declared that the suit property is exclusively owned by the plaintiff and the defendant and all other persons claiming through him are perpetually restrained from obstructing the plaintiff in the peaceful possession and enjoyment of the suit property. The defendant filed an appeal in the District Court, which was allowed, and the judgment and decree passed by the trial Court was set aside. I have perused the grounds of appeal. The Second Appeal was admitted on the following grounds- SA.449-84 - 4 - (a) Whether the lower Appellate Court erred in law in holding that the branch of Fakirnak was extinct even though the defendant admitted that his descendants are alive? (b) Whether the lower Appellate Court was perverse in holding that City Survey No.594 belonged to Fakirnak and after his demise it was inherited in common by the Plaintiff’s father and Kusabai? (c) Whether the lower Appellate Court was perverse in not holding that the suit property devolved upon the plaintiff’s father after the death of his cousin Ambaji Rupnak, having regard to number of admissions given by the Defendant, as alluded to above? (d) Whether the lower Appellate Court erred in law in passing the decree for partition, declaring that the Plaintiff has one-half share only in City Survey No. 594, even though the plaintiff did not file the suit for partition and separate possession, and did not pay the requisite Court fee on the claim of partition? 5. The Apex Court in a recent judgment in the case of – Koppisetty Venkat Ratnam, Appellant vs. Pamarti Venkayamma, Respondent [(2009) 4 Supreme Court Cases, 244] has deprecated the practice of interference of the High Court interfering with the finding of concurrent finding of fact. The Apex Court after taking into consideration the legislative background in the Fifty-fourth Report of the Law Commissioner of India in 1973, as well as the historical perspective in respect of the appellate jurisdiction which has to be exercised by the SA.449-84 - 5 - High Court, the accumulation of arrears of Second Appeals in the High Court and the rationale behind permitting the Second Appeal on the question of law and thereafter taken into consideration the leading cases decided after the 1976 Amendment, has observed in paragraph 17 and 18 as under- “17. It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this Court, a large number of cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of fact without formulating the substantial question of law. 18. We have cited only some cases and these cases can be easily multiplied further to demonstrate that this Court is compelled to interfere in a large number of cases decided by the High Courts under Section 100 CPC . Eventually this Court has to set aside these judgments of the High Courts and remit the cases to the respective High Courts for deciding them de novo after formulating substantial questions of law. Unfortunately, several years are lost in the process. Litigants find it both extremely expensive and time consuming. This is one of the main reasons of delay in the administration of justice in civil matters.” 6. Keeping in view the ratio of the judgment referred to in the said case and the observations made by the Apex Court in paragraph 17 SA.449-84 - 6 - and 18 therein, the questions which are framed on grounds (a) to (d) above are not, in my view, substantial questions of law. In this view of the matter, Second Appeal is dismissed. [ V. M. KANADE J.]