1 SA 1697.2004 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1697 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. S.P.Chapalgaonkar, Advocate for the appellant. Mr. C.V.Dharurkar, Advocate for respondent no. 1. ............................... CORAM : S.V. GANGAPURWALA, J. DATE : 15/12/2010 PER COURT : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for possession on the count that the present respondent is in permissive possession of the suit property. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court also dismissed the Appeal. The plaintiff has assailed the said Judgment in the present Second Appeal. 3. Mr. Chapalgaonkar, learned counsel for the appellant strenuously contended that the suit property was allotted to the present plaintiff in 2 SA 1697.2004 partition and as respondent no. 1 did not have any accommodation, the plaintiff allowed respondent no. 1 to occupy the said premises. According to the learned counsel, both the Courts have mis-read the evidence and the same suffers from perversity. 4. Mr. Chapalgaonkar, learned counsel for the appellant further contends that appellant had preferred an application ( Exh. 76) for production of additional evidence i.e. the statement of the present respondent no. 1 recorded in R.C.S. No. 108 of 1994. In the said statement, present respondent no. 1 had specifically admitted that in partition, no house property was allotted to him. According to the learned counsel, the lower appellate Court has not addressed on this aspect. It was the duty of the lower appellate Court to give finding on that application and to decide the said application along with appeal. For the said purpose, he relies on the Judgment of the Apex Court in the case of M/s Eastern Equipment and Sales Ltd. V/s ING Yash Kumar Khanna reported in AIR 2008 Supreme Court – 2360 . 5. Per contra, Mr. Dharurkar, learned counsel for respondent no. 1 submitted that both the Courts on appreciation of evidence, oral as well as documentary, have come to the conclusion that the suit house was allotted to the share of the present respondent no. 1’s father in partition, which had taken place in the year 1968. The said factum is proved by the witnesses, who were present at the 3 SA 1697.2004 time of partition. The learned counsel further submitted that the statement which is sought to be relied by way of additional evidence is not concerning the present suit property. The statement was given in R.C.S. No. 108 of 1994 in respect of the properties, which were the subject matter of the lis in the said Suit. The said dispute was between the present respondent no. 1 and his step mother and step brother and the same was with regard to the agricultural land and house property bearing No. 426. The statement made that he is not allotted any share in the house property, is with regard to the partition effected in the year 1973 between his step mother, step brother and himself. 6. With the assistance of the learned counsel, I have gone through the Judgments. 7. Both the Courts on appreciation of oral evidence, so also, the record of the city survey, have come to the conclusion that the suit house was allotted to the share of the present respondent no. 1’s father in the year 1968. The witnesses of the plaintiff were disbelieved, whereas the witnesses who were present at the time of partition were relied by the Courts below while coming to the said conclusion. The conclusion drawn by the Courts is a plausible conclusion. No perversity can be found in the appreciation of the said evidence. 8. Regarding the objection of the appellant that 4 SA 1697.2004 the lower appellate Court has not addressed itself on the additional evidence is concerned, no doubt, whenever an application for additional evidence is produced and if the same is allowed, then the Court should address on the same. The statement which is produced by way of additional evidence is with the record and proceedings. I have perused the said statement of the present respondent no. 1. Perusal of the said statement shows that the same was with regard to the partition effectuated in the year 1973 between the step mother, step brother on one side and the present respondent no. 1 on the other. The said statement is clear and unequivocal. 9. As such, even though the lower appellate Court has not followed the procedure regarding additional evidence as was expected of him, still the same would not affect the merits of the matter. 10. In light of above, the present Second Appeal being sans substantial question of law, is dismissed however with no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/SA 1697.2004