1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal NO. 494/2010 (Nanda Shrirang Wararkar VERSUS Pushpa Vishal Gaurkar & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.J. Thakkar, counsel for the appellants. Shri A.P. Purohit, counsel for the R-1 & 2. CORAM : SMT. VASANTI A. NAIK, J. DATE : NOVEMBER 23 , 2010 . Heard. The appellant is the original defendant. A suit was filed by the plaintiff-Pushpa seeking partition and possession of her share in the suit property left behind by her father, Mahadev. According to the plaintiff, the property initially belonged to Mahadev, her father, who had three daughters and a son. Defendant Nanda, plaintiff Pushpa and defendant no.3-Mangala were the daughters of Mahadev and Mahadev had a son by name Shankar. However, Shankar had died issueless. It was the case of the plaintiff that defendant no.1-Nanda and her husband Shrirang had wrongly mutated the suit property in the names of Nanda and Shrirang and were also not ready to partition the suit property and, hence, the suit was instituted. 2 The defendant nos.1 and 2, Nanda and Shrirang, filed their written statement and denied the claim of plaintiff- Pushpa and further denied that the plaintiff was entitled to partition and separate possession of her share in the suit property. It was pleaded by the defendant that Shankar, the son of Mahadev, had made an oral will of his share in regard to the survey number 259 in favour of Mahesh, the son of defendant nos.1 and 2. The defendant nos.1 and 2, therefore, pleaded that Mahesh was a necessary party to the suit. The defendant no.3 filed the written statement and denied the claim of the plaintiff. The trial Court, on an appreciation of the evidence on record, held that the suit of the plaintiff was liable to be decreed in respect of field survey nos.17 and 19 and house property and kotha but, was not liable to be decreed in respect of field survey no.259 as the same was allotted to Mahesh, the son of defendant nos.1 and 2 by Shankar. The first appellate Court, however, reversed the finding recorded by the trial Court in regard to the dismissal of the suit in respect of survey no.259 and confirmed the findings recorded by the trial Court in regard to the partition and separate possession of field survey nos.17, 19 and the house property and kotha. 3 The findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record. The first appellate Court rightly confirmed the findings recorded by the trial Court in regard to the field survey nos.17, 19 and the house property and the kotha and rightly reversed the findings recorded by the trial Court in regard to field survey no.259 as the first appellate Court held and rightly so that the part of survey no.259 could not have been transferred to Mahesh by an oral will. The first appellate Court rightly held that the property could not have been transferred by an oral gift or an oral will. The first appellate Court correctly held that Mahesh had no concern with the land survey no.259 and he could not have been said to be a necessary party to the suit for partition and separate possession as there was no transfer of field survey no.259 as required under the provisions of Transfer of Property Act. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE APTE