1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 551/2010 (Suman Tulshiram Ujed & others VERSUS Tulshiram Dhondu Ujed & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Abhay Sambre, counsel for the appellants. CORAM : SMT. VASANTI A. NAIK, J. DATE : DECEMBER 20 , 2010 . Heard. The appellants are the original plaintiffs. They had filed a suit for partition and separate possession of their share in the suit properties. They had also prayed for setting aside the alienations made by the defendant no.1, the father of the plaintiff nos. 2 to 8 and the husband of the plaintiff no.1 as also for setting aside the judgment and decree passed in Special Civil Suit No.57/1995 granting a decree for specific performance of contract in favour of defendant nos.2 and 3 and against the defendant no.1. It was the case of the plaintiffs that the suit property was the ancestral property of Punjaji in the hands of defendant no.1, Tulshiram, grandson of Punjaji. It was pleaded by the plaintiffs that the will executed by Punjaji in favour of Tulshiram was void as the plaintiff nos.2 to 8 had acquired a right to the suit property by birth. It was pleaded by the plaintiffs that the alienation of the suit properties by the defendant no.1 was not for legal necessity and the properties were liable to be partitioned. 2 The defendant no.1 filed the written statement and denied the claim of the plaintiffs. The defendant nos.2 and 3, however, resisted the suit by filing the written statement and pleaded that a false suit was filed by the plaintiffs with the collusion with the defendant no.1. It was pleaded by the defendant nos.2 and 3 that the suit properties were not the joint family properties and Tulshiram possessed several other immovable properties but, they were not included in the suit properties and the suit was, therefore, liable to be dismissed for not including all the properties of Tulshiram in the suit properties. The trial Court, on an appreciation of the evidence on record held that the plaintiffs had not been successful in proving that the suit property was the ancestral joint family property and the will executed by Punjaji in favour of defendant no.1-Tulshiram was void ab-initio. The trial Court held that the defendant nos.2 and 3 were the sole owners of the suit property. The Court held that the decree passed in Special Civil Suit No.57/1995 was binding on the plaintiffs. Since the aforesaid issues were answered against the plaintiffs, the Court held that the suit filed by the plaintiffs for partition and separate possession was liable to be dismissed. The first appellate Court,on a re-appreciation of the evidence on record,confirmed the finding recorded by the trial Court that the plaintiffs had been unsuccessful in proving that the suit properties were the joint family properties and the will executed by Punjaji in favour of Tulshiram was void. The first appellate Court, however, held that the plaintiff no.9 had 1/4th share in the suit properties but, the plaintiff no.9 was 3 not entitled to partition and separate possession of his 1/4th share in the suit properties as all the properties belonging to Tulshiram were not included in the suit properties. The first appellate Court held that the claim of the plaintiff no.9 was bad for not including all the properties belonging to Tulshiram in the suit properties and asking for partition of only the suit property was not proper and equitable as the defendant no.1 had sold certain properties, which were not included in the suit properties. The findings recorded by both the Courts on the nature of the suit properties and about the validity of the will executed by Punjaji are pure findings of facts, based on a proper appreciation of the evidence on record. So also, the first appellate Court has rightly held that though the plaintiff no.9 was entitled to 1/4th share in the suit property, the claim of the plaintiffs was bad for not including all of the properties of Tulshiram in the suit properties. The findings recorded by both the Courts do not give rise to any substantial question of law. Hence, the second appeal is dismissed with no order as to costs. JUDGE APTE