- 1 - sa374 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION SECOND APPEAL NO.374 OF 2010 Smt.Laxmi Balkrishna Palse & ors ..Appellants vs Annaso Ramchandra Palse & ors ..Respondents Mr.S.S.Deshmukh for Appellants Mr.N.V.Bandiwadekar for Respondent Nos. 1(A) to 1 (D) and 2 to 4. CORAM: G. S.GODBOLE, J DATE: 10 th June, 2011 ORAL JUDGMENT 1. Heard Mr.Deshmukh for the Appellants and Mr.Bandivadekar for Respondent Nos. 1 A to 1 (D) and 2 to (4). 2. Respondent Nos. 3 and 4 in the present Second Appeal had filed Special Civil Suit No.169 of 1998 against the Appellants and Respondent Nos.1 and 2 in the Court of learned C.J.S.D. Kolhapur for partition and separate possession of various properties. A preliminary decree was passed by the Learned C.J.S.D. Kolhapur on 3.1.2001 and shares of - 2 - sa374 respective parties were determined and suit was partly decreed. The original Plaintiffs in the suit who are Respondent Nos. 3 and 4 herein were allotted 1/20th share each in the properties described in para 2 A to 2C of the plaint and the defendant Nos. 1 to 3 were also allotted 3/10th share each. It is an admitted position that this preliminary decree has attained finality. The Appellants thereafter filed Final Decree Application No.19 of 2002 for physical partition of the suit property. A Court Commissioner was appointed for visiting and measuring the two house properties namely City Survey No.1916 D Ward and City Survey No.1945 D Ward. The Court Commissioner visited the said two properties and carried out the measurements and filed his report below Exhibit 19 alongwith a map. Both properties namely City Survey No.1916 D Ward Kolhapur and City survey No.1945 D Ward Kolhapur were shown in the map and Court Commissioner suggested partition of the said properties. The Appellants filed an Application-cum-objection on 15.10.2002 below Exh 24 in Final Decree Application No.19 of 2002. The Respondents in the Final Decree proceedings accepted the report of the Court Commissioner. It is - 3 - sa374 pertinent to note that in para 1 of the said application Exhibit 24 the Appellants accepted that the map prepared by the Court Commissioner and measurements indicated in the said map are correct. 3. The Learned C.J.S.D. Kolhapur who heard the said Final Decree Application No.19 of 2002 overruled the said objections of the Appellants to the report of the Court Commissioner. The principal objection of the Appellants was to the effect that City Survey No.1916 D Ward was a very small property and if the same is partitioned they will be dispossessed from the major portion of the said property since they were already in exclusive possession thereof. It was also contended that at an earlier point of time, late husband of the Appellant No.1 and father of Appellant Nos. 2 and 3 had incurred expenditure for repairing the property City Survey No.1916 D Ward and hence they had psychological attachment. The Learned Judge of the Trial Court however overruled the said objections by recording a finding that in so far as City Survey No.1916 D Ward is concerned said property was abutting the main road whereas property bearing City Survey No.1945 D Ward was - 4 - sa374 inside Gavli Galli and was therefore not abutting the main road. The Learned judge of the Trial Court has therefore recorded a finding that property bearing City Survey No.1916 D Ward was having commercial potential and partition suggested by the Court Commissioner was proper. 4. Aggrieved by the said decree the Appellants filed Civil Appeal No.50 of 2006 in the District Court at Kolhapur. 5. By the impugned Judgment and Order dated 11.3.2010 the Learned District Judge at Kolhapur has partly allowed the appeal and the Judgment and Decree of the Trial Court in so far as it had rejected the prayer of the Appellants for inquiry into the mesne profits has been set aside and rest of the decree of the Trial Court has been confirmed. The Respondents have not challenged the said Judgment and Decree. 6. In the present Second Appeal, Mr.Deshmukh strenuously contended that City Survey No.1916 D Ward being a very small property the same should not - 5 - sa374 have been allowed to be divided and on this ground the Judgment and Decree of the courts below were sought to be assailed. 7. I have carefully considered the submissions of the learned counsel for the Appellants. In so far as the contention of the Appellants before the Trial Court to the effect that their predecessor-in-title had spent substantial amount for carrying out repairs of house bearing City Survey No.1916 D Ward is concerned, the learned Judge of the Appellate Court has considered the said contentions and it has been held in para 16 of the Judgment of the Appellate Court that the Appellants were not able to substantiate the said contention. This is a pure finding of fact. In so far as second contention of the learned counsel to the effect that City Survey No.1916 D Ward is not partible, the Learned Judge of the Appellate Court has elaborately dealt with the said aspect in paragraph no. 18 of the Judgment of the Appellate Court. It may be noted that the Learned Judge of the Appellate Court has specifically recorded a finding that the said house property City Survey No.1916 D Ward is capable of - 6 - sa374 being partitioned. This finding has not been shown to be perverse or illegal. The only submission which is advanced is that after effecting partition the portion which would be allotted to the share of the Appellants would be a smaller portion. However, since the map of the Court Commissioner, correctness of which has not been doubted in the proceedings, clearly shows that the other house property does not abut the main road; such a course of action was inevitable particularly when City Survey No.1945 D Ward was also partitioned and an equitable partition has been suggested by the Court Commissioner. 8. The Judgment of the Appellate Court has considered all the aspects in their proper perspective and the Judgment and Decree passed by the Appellate court is in accordance with law, facts of the case and the evidence led by the parties. No substantial question of law arises in this Second Appeal. Hence, the same is summarily dismissed. 9. On account of dismissal of the Second Appeal Civil Application No.945 of 2010 does not survive - 7 - sa374 and is disposed of. G.S.Godbole, J