1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 310 OF 2008 Ishwara Dari Kale & ors........Appellants versus Bhauso Parshuram Kale ........ Respondent. Mr. Vijay Killedar for the Appellants Mr. Tejpal S. Ingale for respondent. CORAM: RANJIT V. MORE, J. DATED : 18th OCTOBER, 2008. P.C.: 1. Heard Mr. Killedar learned counsel for the appellants and Mr.Ingale for respondent. The appellants are the original defendants and the respondent is the original plaintiff. The suit for partition and separate possession was decreed by the trial court and the respondent was granted ½ share in the suit property. This decree of the trial court is confirmed by the lower appellate court in an appeal. There is no dispute that the suit property is ancestral property. The defence of appellant/original defendants was that of prior oral partition. This defence was not accepted by both the lower courts below in the absence of any evidence adduced by the appellants. 2 2. Mr. Killedar learned counsel for the appellants submitted that in the trial court he filed an application at Exh.49 for permission to cross examine the respondent/plaintiff. However, this application was rejected and therefore no opportunity was given to prove his case of oral partition. In my view, this submission is without any merit. The appellant even did not enter into the witness box to lead his evidence. The appellant has also failed to cross examine the plaintiff. It is true that he filed application at Exh.49 for permission to cross examine. However this application was filed after suit was closed for judgment. The lower appellate court has considered this submission in para 11 of the impugned judgment. I do not see any reason to interfere in the concurrent finding of fact recorded by the lower courts below, especially when it could not be pointed out that these findings are perverse or contrary to the evidence on record. Second Appeal is devoid of any substance and therefore the same is dismissed. 3. In view of the dismissal of the second appeal the civil application does not survive and the same is also dismissed. (R.V. More, J.)