(1) SA. 553.1989 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 553 OF 1989 Kadubai Bhagaji and others .. Appellants VERSUS Kachru Pandurang and others .. Respondents Mr. N.K. Tungar, Advocate h/f. Mr. P.V. Mandlik, Sr. Advocate for the appellants Mr. K.B. Jadhav, Advocate h/f. Mr. Sandeep Gorde Patil, Advocate for respondent no.1 to 4, 5-a & 5-b None present for respondent nos. 5-c and 6 though served CORAM : A.V. NIRGUDE, J. DATED : 6TH JANUARY, 2010 ORAL ORDER:- 1] This appeal is challenging the concurrent findings of the Courts below while dismissing the appellants' suit which was filed for declaration of ownership and possession of certain agricultural lands. The appellant no.1/original plaintiff filed this suit against her cousins and the Land Acquisition Officer. 2] The case of the appellant can be narrated as under:- . Dagadu, her father and Pandurang, father of respondent nos. 1 to 5 were brothers. Since long (2) SA. 553.1989 before Dagadu's death, Dagadu and Pandurang were separated both in mess and property. Appellant Kadubai was the only offspring of Dagadu. The suit property consists of two pieces of land of village Palaskheda, Tq. Kannad, Dist. Aurangabad. These lands belonged to Dagadu. It is the case of the appellant, that after Dagadu died on 14.3.1964 she being the only legal heir, succeeded to the suit lands. She however, learnt that the defendants 1 to 5 surreptitiously got their names entered into the 7/12 extract of the suit lands and they claimed that Dagadu had made a will in their favour and had bequeathed the suit lands to them. Despite of the litigation regarding the mutation entries in the record of rights, the respondents 1 to 5 somehow got their names entered in the records of rights of suit lands with the help of the Revenue Officers in 1981. In the meantime, some portion of the suit lands, was acquired for minor irrigation project and the respondent no.6 issued notices to the parties to the suit about the compensation. In the meantime, the appellant/plaintiff filed her suit for declaration of ownership and possession. The respondents 1 to 5 filed written statement in which they stated that Dagadu did not like his daughter the appellant no.1 on account of her alleged adulterous conduct. On the other hand, Dagadu depended on them. He was old, they looked (3) SA. 553.1989 after him,his wife and his property. According to them, out of the love and affection on his own motion, Dagadu executed a will in their favour on 2.1.1964 a few weeks prior to his death. They stated that appellant no.1 was aware of this will since it's execution and despite all this, she filed proceedings against them. They claim that they thus acquired title to the suit lands by adverse possession also. The Courts below in view of this controversy considered two questions of facts (i) Whether the will was a genuine document and is properly proved and (ii) whether the appellants knew about the will and the respondents 1 to 5 acquired title due to adverse possession. The respondents recorded evidence of three witnesses first one was Kachru, the respondent no.1. The second was Maruti a close relative i.e. sister's son of Dagadu and the attesting witness of the will- one Rangnath. The other two witnesses concerned to the execution of the will, could not be examined for they were dead. The deposition of Rangnath is rather ambivalent. Initially he was reluctant to come to give deposition despite issuance of witness summons. Somehow, he was brought to the Court and was examined. He showed his dis-inclination to support the case of the respondent in his deposition. However, he could not deny the fact (4) SA. 553.1989 that he was the attesting witness of the will and that he had come to Aurangabad along with the testator Dagadu and others from his native place. He also admitted that during the evening prior to the date of execution of the will the testator informed him that he would bequeath all his property to his nephews respondents nos. 1 to 5. The only thing he did not depose is the fact that the will was not written in his presence. He said that Dagadu, Maruti, [respondents' witness no.2] and the respondent no.1 Kachru went inside the office for getting the will scribed. He said at that time he and other witness Mahadu were asked to sit outside the office. He then said when the will was written down they were called before the Sub-Registrar and thereafter in the presence of Sub-Registrar, he and others had put their signatures on the deed. He thus, suggested that he was not aware of the contents of the will. 3] The learned counsel appearing for the appellants tried to take advantage of this lapse in the deposition of this witness. He further pointed out that besides respondent Kachru, there is no other witness for proving the will except this witness. However, I am not inclined to discard his testimony only because of the above mentioned lapse. This witness knew as to why he had come to Aurangabad with testator and others. He admitted (5) SA. 553.1989 that during the previous night he stayed with the testator in a hotel in Aurangabad and as said above he also admitted that he knew as to how the testator would dispose of his property through will. 4] The learned Judges of the lower Courts rightly considered the suspicious circumstances connected to the will and it's execution. Both the Courts below rightly took into consideration the legal proposition that the onus of proving the will of this nature would lie on the propounder, the respondents in this case and they should prove the will beyond all suspicious circumstances. The Courts below discussed the facts thread-bear and rightly came to a conclusion that the respondents nos. 1 to 5 proved the will beyond suspicion. I am not inclined to disturb the findings recorded by the Courts below mostly because the findings are based on facts of the case. 5] The question of adverse possession of the respondents 1 to 5 is also satisfactorily answered by the respondents 1 to 5. The appellant no.1 in her deposition admitted that way back in 1964, soon after Dagadu's death, during the litigation between the parties, she learnt about the will and she also admitted that she knew that the respondents 1 to 5 were cultivating the suit lands. Obviously at that time she did not accept the fact that her father had (6) SA. 553.1989 executed the will and so, according to her it was she who was the owner of the suit lands. It has also come on record that during that time, she even had filed a criminal case against respondents 1 to 5 accusing them of committing murder of her father Dagadu. These circumstances clearly establish that the appellant no.1 knew what she believed to be her exclusive property, was being cultivated by the respondents 1 to 5. She made no attempt till she filed a suit after 17 years to get her title declared and possession recovered. The Courts below in these circumstances held and rightly so, that her suit was barred by limitation and that the respondents 1 to 5 had proved their title by adverse possession also. The appeal should therefore, fail. The Second Appeal stands dismissed. No order as to costs. Consequently, interim order passed in favour of the appellants in Civil Application no. 3037 of 1989 on 27.12.1989 stands vacated. The application on behalf of the appellants to continue the interim order is rejected. Sd/- (A.V. NIRGUDE, J.) arp ok