1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1124 OF 2004 1 Sudhakar s/o Panditrao Dahadrai & 3 others Appellants Versus Asaram s/o Narayan Dahadrai & others Respondents WITH SECOND APPEAL NO.166 OF 2007 1 Sudhakar s/o Panditrao Dahadrai & 3 others Appellants Versus Baburao s/o Panditrao Dahadrai & others Respondents Mr.V.R.Naik, advocate for the appellants. Mr.S.R.Deshpande, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 04 th August, 2009. ORAL ORDER: 1 These appeals are presented by original defendants raising exception to the concurrent judgments recorded by the Courts below. 2 Two suits were presented by plaintiffs Asaram Narayan Dehadrai and Baburao Panditrao Dehadrai claiming their entitlement to the extent of their share in the ancestral property land G.No.20, which is 2 stated to be recorded in the name of original defendant no.1 – appellant before this Court and he is possessed of the same. It is the contention of plaintiffs that there was partition between members of the family in the year 1983 and shares were ascertained and accordingly plaintiff Asaram was entitled to possess an area to the extent of 7 acres 36 gunthas, whereas plaintiff Baburao was entitled to possess an area to the extent of 4 acres and 20 gunthas. Rest of the land was of the entitlement of defendant no.1. It is stated that land was purchased in the name of defendant no.1, however, in accordance with terms of compromise, plaintiffs, in respective suits, were entitled to have share in the property. Defendant no.1, in spite of there being partition in the year 1983 and in spite of the fact that terms of compromise are reduced into writing, refused to hand over the shares to the respective plaintiffs. Two suits were, therefore, instituted before the trial Court by plaintiff, in respective suits. 3 In both the suits, defendant no.1 failed to file his written statement. The suits were proceeded without there being any written statement placed on record by defendant no.1. Plaintiffs led evidence – oral as well as documentary and considering the evidence placed on record by the plaintiffs, trial Court was pleased to decree both the suits. Defendants – appellants herein raised exception to the judgment passed by the trial Court by filing two separate appeals. Both the appeals were disposed of by a common judgment by learned Additional District Judge, Jalna, who was pleased to dismiss the appeals by judgment and order dated 13.10.2003. 4 I have perused the judgments delivered by both the Courts 3 below and heard arguments advanced by Shri V.R.Naik, learned Counsel for appellants and Shri S.R.Deshpande, learned Counsel for Respondents No.1(i) to 1(iii) & 2. 5 Shri Naik, learned Counsel for appellants, has strenuously contended that appellant no.1 was suffering from schizophrenia and as such, he was prevented from filing his written statement in both the suits. A prayer is made for remitting the matters back for reconsideration to the trial Court. 6 This aspect has been taken into consideration by the first appellate Court. It is to be noted that defendants no.2 to 4 are the major sons of defendant no.1 and it is observed by the first appellate Court that proceedings before the Court were looked after by defendants no.2 to 4, who are major sons of defendant no.1, who also have failed to take steps for filing their written statement. There is no reason shown as to what circumstances from filing their written statement and contesting the suits. The trial Court offered several chances to the defendants for filing their written statement, however, defendants did not avail of the chances and suits proceeded ex parte. It is to be noted that in spite of the fact that there was partition in the year 1983, plaintiffs were denied their share. The property in dispute remains in possession of defendants and in all probabilities, that is the reason for protracting the litigation by defendants. The first appellate Court has also taken into consideration the fact that there was previous litigation in the shape of Regular Civil Suit No.345/89 initiated against defendants. In the said litigation, defendants have admitted the factum of partition between plaintiffs and concerned 4 defendants as well as allotment of shares. The `yadi’ of partition at Exhibit-49 has not been controverted by the defendants either in the previous suit or in the present proceedings. There is no justifiable reason for the defendants to deny legitimate share of plaintiffs. Plaintiffs led evidence of two witnesses and placed documents on record to justify their contentions. After considering the evidence led by the plaintiffs, the trial Court has granted decree in their favour. The judgment and decree passed by the trial Court has been confirmed by the first appellate Court. There is no justifiable reason for showing indulgence in the matter. Plaintiffs are entitled to fruits of the partition effected in the year 1983 and they cannot be kept away from their entitlement for indefinite period. Already a period of 25 years has lapsed and plaintiffs are denied their legitimate share in the property. 7 Considering all these aspects, I am of the opinion that defendants are not entitled to seek any indulgence in the Second Appeals. No substantial question of law arises for consideration in the appeals. 8. Both the appeals, therefore, stand dismissed. In view of this, pending Civil Applications do not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa112404