( 1 ) sa441.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 441 OF 2011 Kondabai Madhav Gavane & Ors. .. Appellants Versus Sheshrao Hanmantrao Kanwate & Ors. .. Respondents Mr. U.S. Malte, Advocate for the appellants; Mr. M.M. Patil-Beedkar, Advocate for respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 27.09.2011 P.C. :- 1. This appeal challenges the judgment and order dated 18th June, 2002, passed by the II Adhoc Additional District Judge, Nanded, in Regular Civil Appeal No. 1 of 1995. The learned Judge had allowed the appeal of respondent No.1/plaintiff. The respondent No.1 had filed suit for partition and possession. He said that his grand-mother Ansabai had undivided share in the suit property. Ansabai, prior to her death in 1981 had made will in his favour. He said that till 1992 Ansabai’s brother Narayan – father of the appellants used to give him share in the crop of the suit land, but after his death in 1992 the appellant stopped giving him share and so he filed suit for partition and possession. The appellant did not deny relationship between their father ( 2 ) sa441.11 Narayan and Ansabai-the grand-mother of respondent No.1, but they mentioned that Ansabai could not get any share in the ancestral property left behind by her mother Parubai because Parubai died prior to 1956, when the Hindu Succession Act came into force. 2. In view of this defence raised by the appellants, the question between the parties was – what was the date of Parubai’s death? The learned Judge of the First Appeal Court rightly appreciated this aspect of the case and then examined the evidence. He pointed out that respondent No.1 stated in his deposition that Parubai had died sometime in 1957-58 and he thereby tried to prove the year of her death. On the other hand, the learned Judge of the First Appeal Court, again rightly, observed that despite the defence of the appellant they made no attempt to prove that Ansabai had died prior to 1956. He rightly pointed out that it was incumbent on the part of the appellants too to prove that Parubai died prior to 1956 and in absence of such proof the entire defence got shattered. 3. I find no error on the part of the learned Judge of the First Appeal Court in recording the finding. The learned Counsel appearing for the appellants argued that the learned Judge of the First Appeal Court erred in holding that respondent No.1’s suit was within limitation. Even this factual aspect of the case is ( 3 ) sa441.11 indeed properly appreciated by the learned Judge of the First Appeal Court. I find no error in the reasoning recorded by him for coming to the conclusion that the suit was not barred by limitation. The appeal, therefore, should fail. There arises no substantial question of law. The appeal stands dismissed. 4. The request of learned Counsel appearing for the appellant to continue stay to the execution of the decree is refused. [A.V. NIRGUDE, J.] snk/2011/SEP11/sa441.11ok