1 SA.No.557-08 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.557 OF 2008 WITH CIVIL APPLICATION NO.1388 OF 2008 Smt. Taibai Bhikaji Dhanawade & Anr. ... Appellants V/s. Bharat Nivruti Pawar & Ors ... Respondents Mr. Ajey Joshi for the Appellants Mr. Kisan B. Sonwalkar for the Respondent No.3 None for Respondent Nos.2, 4 & 5 CORAM :R. M. SAVANT, J. DATE : 30th JULY, 2010 P.C. 1. This Second Appeal is directed against the Judgment and Decree dated 18­4­2008 passed by the Learned District Judge Malshiras by which the Judgment and Decree passed by the Civil Judge Junior Division in Special Civil Suit No.120 of 1998 dated 30­7­1999 came to be confirmed. 2. The Respondent Nos.1 and 2 herein are the heirs of the Original Plaintiff No.1 i.e. Taibai; whereas the Respondent No.3 herein is the Original Plaintiff No.2. The said Plaintiffs had filed a suit for partition and separate possession of their 5/9” share in the suit property which was more elaborately mentioned in the plaint. The Plaintiffs had also challenged the Sale Deed executed 2 SA.No.557-08 by the Defendant No.1 i.e Bhikaji in favour of the Defendant Nos.2 and 3 i.e. the Appellants herein. The said suit came to be decreed by the Trial Court by Judgment and order dated 30­7­1999. Thereafter, the Defendant Nos.2 and 3 i.e. the Appellants herein, filed Regular Civil Appeal No.189 of 2004. Since the suit had proceeded exparte against the Defendant No.2 i.e. Taibai. The Appellate Court considering the report of the bailiff and on comparison of the signatures on the bailiff report and the signature on the notice of Appeal of the Defendant, reached a conclusion that in terms of the bailiff report it would have to be held that the Defendant No.2 was served. The Appeal was thereafter heard on merits and the decree passed by the Trial Court dated 30­7­1999 came to be confirmed. 2. It is sought to be contended on behalf of the Appellants herein that the Appellate Court could not have embarked on an exercise of comparing the signatures, as such the said practice has been deprecated by this Court and reliance was sought to be placed on a Judgment of a Learned Single Judge of this Court reported in 2008(4) Mh.L.J. Page 208. It is further sought to be contended that the Sale Deed in its entirety could not be set aside and ought to have been upheld by the Trial Court to the extent of the share of the Defendant No.3. 3。 It is pertinent to note that the decree of the Trial Court is of the year 1999 and the Appeal was thereafter filed after a period of 4 years i.e. on 30­4­2003. 3 SA.No.557-08 The Learned Counsel for the contesting Respondent Nos.1 to 3 herein stated that the said decree was executed some time in the year 2000 and the Plaintiffs have received the shares which the Plaintiffs have thereafter sold to the Respondent No.6 herein. In so far as the submissions of the Learned Counsel for the Appellants, as regards the comparison of the signatures, it is required to be noted that the Appellate Court was considering the report of the Bailiff in respect of service and not any document which had come by way of evidence. Therefore, in my view the reliance placed by the Learned Counsel for the Appellants on the Judgment of the Learned Single Judge (Supra) is misplaced. 3. Having heard the Counsel for the parties and having considered the grounds of Appeal, in my view, the Second Appeal does not involve any substantial question of law and is accordingly dismissed. 4. In view of the Second Appeal being dismissed, the Civil Application does not survive and is accordingly disposed of. (R.M.SAVANT, J)