IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 628 of 2005 Zithrubai Ganpati Khewale & ors..vs.. Ramchandra D. Itankar & 2 ors. __________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders 8548.07 CORAM : C.L Pangarkar, J. DATED : 12/03/2008 Heard Shri Anil S. Mardikar, learned counsel for appellants and Shri V. N. Morande, learned counsel for respondent Nos. 1 and 2. This second appeal is at the instance of the defendants. The respondent/plaintiffs had instituted suit for possession of the suit property. Both the courts have decreed the suit. It is alleged that the suit property belonged to one Kewu, who left behind him four sons namely Bhiwa, Kisan, Dharma and Arjuna. In 1930 there was an oral partition between four brothers and subsequent to that partition, the brothers started cultivating their lands separately. In the year 1966, it is alleged that Kisan's wife Zimi executed Will in favour of respondents/plaintiffs and the plaintiffs, therefore, became the owner of the share of Kisan. It appears that in 1972-73, there were consolidation proceedings, due to consolidation of the fields, the dispute arose between the parties and it is alleged that therefore, the plaintiffs was required to institute the suit for possession of his share in the suit property. The defendants had resisted the suit mainly on the ground that Zimibai was already divorced by Kisan and she had no right to bequeath property in favour of plaintiffs. Secondly, the Will was not proved and thirdly on the ground that there was a partition in the year 1972-73 and the Courts below have ignored that partition. The learned counsel for the appellants contended that there is enough evidence available on record to show that there was divorce between Zimibai and Kisan and the Courts below have appreciated the oral evidence. Particularly, the first Appellate Court has taken into consideration the evidence of the witness, who has been examined to prove the divorce. He found that the evidence could not be relied due to fact that the presence of Kisan itself is not proved, when the alleged divorce is said to have been taken place. I do not see any reason to disagree with the appreciation of this evidence and no reliance could be placed on the evidence of witness, who was examined to prove divorce, particularly when, the presence of Kisan was not proved. Learned counsel then contended that the Will has not at all been proved. She brought to my notice evidence of PW 1, who has stated that Will was executed in the year 1960, while other attesting witness, who has been examined as PW 2, has stated that the Will was executed in the year 1966. It is not disputed that the Will has been executed in the year 1966. The witness has clearly deposed in his evidence that deceased Zimibai had put her Thumb Impression on his Will and he has also put his signature. The attesting witness proved his signature and he also identified thumb impression. He is an independent witness. Nothing has been shown as to why his evidence could not be relied. I see no perversity in appreciation of evidence of this witness also. It was also contended that the partition had taken in the year 1972-73 and Courts have ignored that fact. It appears that the dispute had arisen only due to consolidation proceedings. In fact, there was no partition in the year 1972-73 as alleged. The learned Judge of the First Appellate Court has referred to exhibit 95, the statement of 7/12 extract and record of right of the year 1954-55 clearly go to show that each brother had got 1/4th share in the partition and such entry was taken as long back in 1954-55. So, there was no question of their being any partition in 1972-73. I do not see any perversity in appreciation of the evidence by the first Appellate Court. No substantial question of law is involved in this appeal. The second appeal is dismissed in limine. JUDGE. Jsa