1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.97/2010 KESHAO LAXMAN BELKHEDE ..VS.. DNYANESHWAR LAXMAN BELKHEDE & OTHERS Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order . C ORAM : SMT. VASANTI A NAIK,J. DATED : 24/06/2010. Hedard Shri Jasudkar, the learned advocate for the appellant and Shri Chopde, the learned advocate for respondent no.1, 2-A, 2-B, 4 to 6. The appellant is the original plaintiff. He had field a suit for partition and separate possession. According to the plaintiffs Damdu wa 6s the real uncle of the plaintiffs as well as the defendant no.1. According to the plaintiff, the defendant no.1 claimed that Damdu had executed a will on 10.10.1993 making a bequest of the suit property in favour of the defendant no.1. It was the case of the plaintiffs that Damdu had relinquished his share and right in the field property in favour of defendant no.2 his brother and defendant no.2 became the full owner of field survey nos. 528, 529 and 530. Though according to the plaintiffs he requested the defendant no.1 & 2 for partition and separate possession of suit property bearing survey no.528, 529 and 530 the defender no.1 avoided to make 2 the partition. According to the plaintiffs the will executed by Damdu in favour of defendant no.1 was not valid. He had already relinquished his share in some of the properties in favour of defendant no.1. The plaintiffs pleaded that the plaintiffs no.1 and 2 and defendant no.1 to 3 had 1/5 share in the suit property and therefore, the plaintiffs sought partition and separate possession of his share in the suit property. He also sought a declaration that the will dated 10.10.1993 was null and void. The defendant nos. 2 and 5 admitted the claim in the suit. The defendants no.3 & 4 failed to file the written statement. The defendants no. 6 and 8 also did not contest the suit. The defendant no.1 however, resisted the claim of the plaintiffs by filing the written statement. He admitted the relationship between the parties, but pleaded that there was a partition between Damdu and his brother Laxman. He pleaded that Damdu had executed a will in respect of land admeasuring 2.10 H.R. in favour of defendant no.1 and defendant no.1 had became the exclusive owner and possessor of this property. The defendant no.1 sought for the dismissal of the suit. Both the courts on an appreciation of the material evidence on record held that the plaintiffs failed to prove that during his life time Damdu had relinquished his share in some of the properties in favour of defendant no.2 and defendant no.2 was the owner of the field survey no.528, 3 529 and 530. The courts held that the plaintiffs failed to prove that the will executed by Damdu was bogus and inoperative. Both the courts however, held that the plaintiffs no.1 and defendant no.1 & 2 and defendant no.5 had 1/16 share in survey no.528, 529 and 530 and 498/1 from village Karanja and they were entitled to partition and separate possession thereof. Since both the courts held that the will executed by Damdu in favour of defendant no.1 was valid, the courts were justified on an appreciation of the evidence on record in holding that the plaintiffs no.1, defendant no.1, defendant no.2 and defendant no.5 had 1/16 share in the suit property and they were entitled to partition and separate possession of the same. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the material on record. On perusal of the evidence attesting of the witnesses to the will and on the evidence of the defendant no.1, it is clear that there are no material contradictions for disproving the will as canvassed on behalf of the appellant. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP