1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1395 OF 2005 1 Dasharath Bulakhi Chaudhari age 43 years, occ. agriculturist 2 Shri Tukaram Bulakhi Chaudhari age 53 years, occ. agriculturist 3 Shri Bharat Bulakhi Chaudhari age 35 years, occ. agriculturist 4 Smt. Devaben Bulakhi Chaudhari age 78 years, occ. household work Nos. 1 to 4 r/o Waka, Tq. Nizar, Dist. Surat. 5 Smt. Ukhiben @ Sitabeai w/o Brijalal Patel ( Deceased through legal representative) 5A Eknath s/o Brijlal Patel age 25 years, occ. agriculture r/o Kothali (kh), Tq. & Dist. Nandurbar. 6 Smt. Tapiben w/o Kashinath Patel age 55 years, occ. household r/o Dhulwad, Tq. Nandurbar. 7 Smt. Surekhaben Onkar Patel age 34 years, occ. household work r/o Aasaware, Tq. Nizar, Dist. Surat. .. APPELLANTS VERSUS 1 Smt. Aashaben w/o Bhatu Chaudhari age 37 years, occ. agriculturist 2 2 Shri Rameshwar Bhatu Chaudhari age 16 years, occ. nil (minor guardian through Respondent no. 1 Smt. Aashaben w/o Bhatu Chaudhari) Both r/o Rakaswade, Tq. Nandurbar. 3 Smt. Surrekhaben w/o Onkar Patel (Deceased through LRs) 3A Shri Onkar Murar Patel age 46 years, occ. agriculturist 3B Dhanraj Onkar Murar Patel age 17 years, occ. education 3C Seema Onkar Patel age 15 years, occ. education 3D Sonal Onkar Patel age 14 years, occ. education 3E Khushal Onkar Patel age 13 years, occ. education. Respondent nos. 3-B to 3-E are minor under Guardianship of respondent no. 3A. .. RESPONDENTS Shri C.R. Deshpande, Advocate for the appellants. Shri S.P. Shah, Advocate holding for Shri Pushkar Shendurnikar, Advocate for respondent no. 2. ===== CORAM : R. M. BORDE, J. DATE : 10 th September, 2009. ORAL JUDGMENT : 3 1 Heard Shri C.R. Deshpande, learned counsel for the appellants and Shri S.P. Shah, learned counsel holding for Shri Pushkar Shendurnikar, learned counsel for respondent no. 2. 2 Admit. With the consent of the parties, the matter is taken up for final hearing at admission stage. 3 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. Respondents / plaintiffs instituted Regular Civil Suit no. 22/1993 claiming partition and separate possession of the ancestral property. According to the plaintiffs, deceased Bulakhi Kathu was the Karta of the joint family of plaintiffs and defendants. He died on 29-8-1992 leaving behind him defendant nos. 1 to 3. Defendant no. 4 is his widow whereas defendant nos. 5 to 7 are the married daughters. Plaintiff no. 1 Asha is the wife of deceased son Bhatu and plaintiff no. 2 Rameshwar is son of deceased Bhatu. According to plaintiff, suit land and the house property are joint family properties and they have together 9/48 th share. According to the case put up by plaintiffs, during the life time of Bhatu, he allotted certain property to defendant nos. 1 4 to 3 and mutation entry in that respect was recorded. However, there was no partition effected by metes and bounds. Distribution of the property amongst the parties was unequal. Plaintiff claims that she has not received equal share in the property. Plaintiff as such claims partition and separation of the share. 4 Defendants appeared and controverted the contentions raised by plaintiff by filing written statement. According to defendants, there was partition effected some 20 to 22 years back during life time of Bulakhi Kathu. In the year 1971, some property was allotted to defendant nos. 1 to 3 and mutation entries in that regard were taken. It is contended by defendants that house n o. 49 of village Rakaswade was given to the share of deceased Bhatu some 17 to 18 years back. Bhatu died on 17-4-1985 and after the death of Bhatu names of plaintiffs are entered into revenue record as heirs of deceased Bhatu. Some golden ornaments were given to the plaintiff as per the contention of the appellants. It is therefore contended that house property bearing no. 287, 283 and 267 situate at Waka were given to the share of defendant nos. 1 to 3 and they are in possession thereof since last 30 years. Thus, according to the defendants, as there was already partition between the parties during the life time of Bulakhi Kathu, there is no question 5 of effecting partition once again at the instance of the plaintiffs. Defendants as such pray for dismissal of the suit. 5 Trial court on the basis of the pleadings raised by the parties framed issues and after recording evidence of the parties came to the conclusion that the plaintiff has established her case and as such by judgment and decree passed on 3-5-1997 decreed the suit presented by the plaintiffs. Plaintiff nos. 1 and 2 are held entitled to have 9/48 th share in the suit property and it was directed that the partition and separation of shares be effected in accordance with section 54 of the Code of Civil Procedure. Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no. 43/1997 at the instance of original defendants. Appeal came to be heard and disposed of by the Adhoc Additional District Judge, Nandurbar after hearing both the parties, who was pleased to dismiss the same by judgment dt. 6-7-2005. 6 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. Learned counsel for the appellant has contended that the judgment of the appellate court cannot be considered as proper judgment as 6 contemplated by Order XLI Rule 31 of the Code of Civil Procedure. It is contended that the appellate court is required to give reasons in support of the decision after formulating the points for determination. Learned counsel for the appellant has also invited my attention to paragraph nos. 13 to 23 and paragraph nos. 26 to 29 and 35. It is contended that paragraphs quoted above in the judgment of the first appellate court are merely reproduction of the paragraphs in the judgment of the trial court. According to learned counsel for the appellants, the first appellate court has not applied mind to the record of the case and merely reproduced the judgment of the trial court. According to him, therefore, the judgment of the first appellate court cannot be construed as a judgment in accordance with provisions of Rule 31 Order XLI of the Code of Civil Procedure. It is indeed shocking that more than 2/3 rd of the judgment of the appellate court which runs in about 30 pages is mere reproduction of the judgment recorded by the trial court. First appellate court is required to re-appreciate the evidence placed on record and decide the points formulated on recording independent reasons. First appellate court is the last fact finding court and has responsibility to re-appreciate the evidence placed on record before the trial court. Responsibilities of the first appellate court have been recorded in detail in the judgment of the Apex court in the matter of Santosh Hazari vs. 7 Purushottam Tiwari reported in (2001) 3 Supreme Court Cases 179. It is also to be noted that if the judgment of the first appellate court is not in conformity with the provisions of Order XLI Rule 31 of the Code of Civil Procedure, the same cannot be construed as a legal and proper judgment. It is essential for the first appellate court to re-assess the evidence and record its own findings based on own assessment of the evidence. Merely because the first appellate court agrees with the reasons recorded by the trial court cannot be an excuse for not recording its own independent reasons on assessment of evidence. In the instant matter, therefore, it cannot be said that the judgment of the first appellate court satisfies these essential tests. It would be appropriate to refer judgment in the matter of Thereza Cordo vs. Venkatesh Lotlikar reported in 2006(6) Bom.C.R. 759. In this view of the matter and for the reasons recorded as above, I am of the opinion that the judgment delivered by the first appellate court is not sustainable in the eyes of law. Matter therefore is remanded back to the first appellate court for deciding the same in accordance with the provisions of law. It is needless to state that the first appellate court shall deal with the matter in accordance with the law laid down by the Apex court in the matter of Santosh Hazari vs. Purushottam Tiwari reported in (2001) 3 Supreme Court Cases 179 (cited supra) as well as in accordance with the ratio laid down in the matter of 8 Thereza Cordo vs. Venkatesh Lotlikar reported in 2006(6) Bom.C.R. 759. Appeal is thus allowed. Judgment and decree passed by the first appellate court in Regular Civil Appeal no. 43/1997 dt. 6-7-2005 is quashed and set aside. First appellate court is directed to decide the appeal afresh after extending opportunity of hearing to the parties concerned. Considering the fact that the litigation is initiated in the year 1993, the first appellate court shall make an endeavor to dispose of the appeal as expeditiously as possible preferably by the end of February 2010. Parties to appear before the first appellate court on 5 th October, 2009. ( R. M. BORDE, J.) dyb/office/sa1395.05.odt