1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants-
original defendants to quash and set aside the impugned judgment and decree passed by the learned trial Court-learned Civil Judge (Junior Division), Jhalod dated 25/09/2001 in Regular Civil Suit No. 18/1993 as well as the impugned judgment and order passed by the learned lower appellate Court-learned 5th Additional District judge, Dahod dated 05/03/2012 in Regular Civil Appeal (New) No. 152/2004 (Regular Civil Appeal (old) No. 52/2001) by which the learned appellate Court has dismissed the said appeal preferred by the appellants-original defendants confirming the judgment and decree passed by the learned trial Court decreeing the suit.
2. The respondents-original plaintiffs instituted Regular Civil Suit No. 18/1993 in the Court of learned Civil Judge (Junior Division), Jhalod for partition of the suit property claiming 1/4th share in the suit property. The suit was resisted by the appellants-original defendants by submitting that as such there was already partition amongst the family members. The learned trial Court framed the issues. Thereafter, on appreciation of evidence, the learned trial Court decreed the suit by judgment and decree dated 25/09/2001 by holding that the respondents-original plaintiffs is entitled to 1/4th share in the suit properties/lands and directed the Collector, Dahod to partition the property by meets and bounds as Court Commissioner. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court in Regular Civil Suit No. 18/1993 the appellants-original defendants preferred Regular Civil Appeal (New) No. 152/2004 (Regular Civil Appeal (old) No. 52/2001 before the learned District Court, Dahod and the learned 5th Additional District Judge, Dahod by impugned judgment and order dated 05/03/2012 has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit. Being aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court confirmed by the learned appellate Court the appellants- original defendants have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. Shri B.G. Patel, learned advocate appearing on behalf of the appellants has vehemently submitted that the learned trial Court has materially erred in not considering the fact that earlier the suit properties were already partitioned between the family members and, therefore, it is submitted that both the Courts below have materially erred in holding that the respondents-original plaintiffs have 1/4th share in the suit properties treating the suit properties as ancestral properties. Making the above submissions, it is requested to admit/allow the present Second Appeal.
4. Heard Shri B.G. Patel, learned advocate appearing on behalf of the appellants-original defendants and considered the impugned judgment and orders passed by both the Courts below. At the outset, it is required to be noted that as such there are concurrent findings of fact given by both the Courts below holding that the appellants-original defendants have failed to prove that the suit properties were already partitioned earlier. Both the Courts below have also concurrently found that the respondents-original plaintiffs have 1/4th share in the suit property. The finding of the fact given by both the Courts below are on appreciation of evidence, which are not required to be interfered with in exercise of powers under Section 100 of the Code of Civil Procedure. It cannot be said that he finding of fact given by both the Courts below are perverse and/or contrary to the evidence on record.
5. It is also required to be noted that unless and until it is pointed out that any substantial question of law arises, the Second Appeal is not required to entertained. The learned advocate appearing on behalf of the appellants-original defendants is not in a position to point out any substantial question of law, which arises in the present Second Appeal. Under the circumstances, the present Second Appeal is not required to be entertained.
6. In view of the above and for the reasons stated hereinabove, there is no substance in the present Second Appeal, which deserves to be dismissed and is accordingly dismissed.
CIVIL APPLICATION No. 8313/2012 In view of dismissal of the Second Appeal, the Civil Application deserves to be dismissed and is accordingly dismissed.
(M.R. SHAH, J.)
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