JUDGMENT :- This Second Appeal is filed by the Legal Heirs of Original defendant Nos.1 and 2 against original plaintiff Nos. 1 to 3- respondents, in whose favour by order dated 30th April. 1985, the Joint Civil Judge, Junior Division, Kolhapur (for short, "Executing Court") in Final Decree Application has passed the following order.

The application is granted.

The Suit property be partitioned through the Court Commissioner according to the directions given in the decree and 3/4th portion of the same be handed over to the plaintiffs-applicants by demolishing the construction. if necessary.

No order as to costs.

2. The same has been confirmed by the Additional District Judge, Kolhapur by order dated 20th October, 1988 and therefore, the present Second Appeal.

3. By an order dated 30th November, 1988 the Court has framed the following question of law. Whether in the facts and circumstances of the case the principle of equity should have been applied?

4. The factual background in the matter is as crystalized by the Executing Court is as under :-

"The plaintiffs have filed Regular Civil Suit No.92811967 against the Defendants for declaration that the gift deed of the suit property executed by defendant No.1 in favour of defendant No.2 be declared void and not binding on the plaintiffs and also for possession of their 3/4th share after an equitable partition, which was decreed in favour of the Plaintiffs having ordered that:

"It is hereby declared that the gift-deeds, dated the 12th September, 1964 executed by Keshav Ganpat in favour of Shantabal Davane are void and not binding on the Plaintiffs. It is also declared that the gift deed, dated the 19th April, 1963, executed by Keshav Ganpat in favour of Balu Laloba is void and not binding on the Plaintiffs. It is also declared that Plaintiffs have got 3/4th share in the suit property. viz. Final Plot No.434 in Town Planning Scheme No.1. They are entitled to its partition and separate possession. The partition of the property shall be done by a Commissioner who will the suits are granted 3 months time to pull down the construction made by them. Defendant No.2 in both the suits, do pay plaintiffs the costs do pay plaintiffs the costs of the suit and to bear their own. No order as to costs of defendant No.1 in both the suits. Inquiry as regards under Order 20, Rule 12(1)(c) of Civil Procedure Code."

The Defendants preferred Civil Appeal No. 18111969 against the decree in Regular Civil Suit No.928/1967 in the District Court at Kolhapur, which was dismissed with costs. The Defendant then preferred Second Appeal No.82711970 against the decision of the District Court, in which their Lordships of the Bombay High Court ordered that ;-

"For the reasons stated in the judgment, recorded in S.A.82611970. the Court directs that in the proceedings for making the final decree, the Court shall appoint a Commissioner who will try to find out whether by amicable settlement between the parties, the rights and equities existing in the property along with the construction can be either adjusted by sale or purchase between them and in case, any amicable settlement is possible, he shall give effect 10 the same. The Court further directs that if no amicable settlement is possible in this regard, then the defendants shall remove the construction as far as possible so as to make available 3/4th of the plot property viz., the Final Plot No.343 in Town Planning Scheme No.1 to the Plaintiff within the period of 3 months. The Court, however, makes it clear that the Commissioner as well as the Court shall be free to consider the application of the parties so as to apply the provisions of the partition Act in the final decree proceedings. With these directions to be made part of the decree and the consequent modifications, the Court confirms the decree of the trial Court as confirmed by the Lower Appellate Court and dismisses the appeal with costs."

The defendants then preferred Special Leave Petition (Civil) No. 1378

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