1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.133 OF 1987 Pandurang Bhimrao Thorbole Gondhali, age major, occup. agriculture, r/of Paranda, Appellant/orig. District Osmanabad. Defendant No.2. versus 01. Parasram Bhimrao Gondhali, age major,occup.agril. r/o Paranda, Dist. Osmanabad. (since deceased), through his legal representatives: 1/1. Gopikabai Parasram Thorbole age 70 yrs.occup. household r/of Paranda,Dist.Osmanabad. 1/2. Bibishan s/o Parasram Thorbole, age 55 years occupation agril. r/o as above. 1/3. Sojar Mahadeo Khankal, age 50 years, occup. Agril., r/of Unchetan, Takuka Mangalwedha, Dist.Solapur. 2 02. Bajrang Bhimrao Gondhali Thorbole, age major, occup. agri. r/o Paranda. 30. Indubai w/o Bhagwan Gondhali age major, occupation Agril. r/of Raut Galli, Barshi, District Solapur. 04. Rajubai w/of Bhimashankar Gaikwad, age major, occup. household r/of Paranda, District Osmanabad. 05. Indubai w/o Sidheshwar Gore, Respondents/ age major, occup. agriculture, No.1 is orig. r/of Sangola, Dist. Solapur, pltff., Nos.2 (L.R. of deceased Bhimrao & 3 orig.deft Bhavani Thorbole, Gondhali. Nos.3 & 4,No. impleaded as Respondent in appeal. ------------------------------------------------------ Shri S.M. Kulkarni, Advocate, for the appellant. Shri S.Y.Mahajan, Advocate,for Resp.Nos.1(i)to 1(iii). ------------------------------------------------------ Coram : P.R. Borkar, J. Date : June 09, 2010 ORAL JUDGMENT 01. This second appeal is filed by Pandurang- original defendant No.2 against the judgment and order 3 of the District Court dated 10.12.1986 partly allowing Regular Civil Appeal No.115 of 1981 which was filed by original defendant No.1 and 2 and thereby modifying the judgment and decree dated 3.4.1986 passed by the learned Civil Judge Junior Division, Paranda, in R.C.S. No.1 of 1975. 02. Respondent No.1, whose legal heirs are brought on record, was the original plaintiff who filed suit for partition and separate possession. It is no more disputed that present appellant Pandurang- (defendant No.2), original Plaintiff Parasram, Respondent No.2 Bajrang and deceased Bhagwan whose widow Indubai is Respondent No.3, were brothers. They were sons of Bhimrao who was original Defendant No.1 and who died during pendency of appeal as a result of which Respondent Nos. 4 and 5 were brought on record as his legal representatives. 03. According to the plaintiff-Respondent No.1, survey No.126 situated at Paranda is the joint family property. Due to disputes in the family, the three surviving brothers had agreed to maintain their father Bhimrao (defendant No.1). Defendant No.1 had surrendered his right in the suit property. Bhagwan- 4 the fourth brother and son of Defendant No.1 was given in adoption to one Laxmibai and as such he had no right in the suit property. In the circumstances, suit for partition and separate possession was filed. 04. Defendants No. 1 to 3 filed Written Statement at Exhibit 22. They denied all averments of the plaintiff. It is denied that Bhagwan was given in adoption.It is stated that already there was partition in which suit land survey No.126 was allotted to the share of defendant No.1 and as such during his life time the suit is not maintainable. It is contended by defendants that if partition is to be effected, it ought to be in respect of all family properties. Ultimately, defendants No.1 to 3 prayed that the suit be dismissed. 05. Defendant No.4 Indubai filed her written statement at Exhibit 61 and claimed that she is entitled to 1/4th share of Bhagwan. 06. The trial court decreed the suit and held the plaintiff to be entitled to 1/4th share in the suit land Survey No.126. It is further held that Defendant Nos.3 and 4 each were also entitled to 1/4th 5 share. The said judgment and decree of the trial court was challenged in regular civil appeal before the District Court by original defendant Nos.1 and 2 i.e. Bhimrao and Pandurang. Bhimrao died during pendency of the said appeal and,therefore,his legal representative Indubai and Pandurang (present Respondent No.5 and appellant) continued said first appeal. 07. In the appeal memo before the District Court all that is stated is that the trial court did not give opportunity to the appellants-original defendant Nos.1 and 2 to cross examine the witnesses examined on behalf of the plaintiff and did not allow the appellant therein to lead their evidence. It is averred in ground No. 3 of the said appeal that the decree was obtained by plaintiff by deceitful means and, therefore, the decree deserved to be set aside. A request was made that the matter be remanded to the trial court. As stated earlier, the District court partly allowed the said regular appeal against which present second appeal is filed. 08. At the time of admission of this second appeal by order dated 2.11.1987, no substantial question of law was framed. 6 09. Heard Shri S.M.Kulkarni and Shri S.Y. Mahajan, learned counsel for the respective parties. It is argued before this court that already partition had taken place on 6.5.1968 and no case for reopening the same is made out. It is also contended that the first appellate court erred in holding that the plaintiff was entitled to 7/30th share when Bhimrao had executed a Will in favour of Defendant No.2. 10. Along with this second appeal, civil application No.10116 of 2008 is filed seeking permission to produce the Will-deed dated 1.4.1980. The first appellate court framed point as to whether the plaintiff had 1/4th share in the suit property and ultimately it is held that the plaintiff has 7/30th share in the suit land. The learned District Judge in paragraph 8 of his judgment observed that even if it is assumed that the land survey No.126 was kept exclusively for the benefit of deceased defendant No.1 and therefore after his death, the said land automatically came to the share of legal heirs of defendant No.1 and those heirs were the plaintiff, defendant Nos. 2 to 4 and two daughters Indubai and Rajubai. 7 11. It does not appear from the record that the Will was produced either before the trial court or before the District Court. Absolutely we find no reason why the copy of the Will was not produced at least before the District Court and why it was not argued that by virtue of the Will the property of deceased Bhimrao was inherited only by present appellant Pandurang. This is a second appeal. The point regarding the alleged Will, which was not pleaded either before the trial court or even before the District Court, was sought to be raised for the first time before this court by the learned counsel for the appellant. There is nothing on record to show why the Will-deed could not be produced before the district court or prayer could not be made to the District Judge during the course of arguments for allowing the parties to prove the Will. 12. In my opinion, this second appeal, though admitted, does not raise any substantial question of law. The relationship between the parties is not disputed. Assuming that as per Exhibit 66-the memorandum of partition was proved, the property was allotted to deceased Bhimrao and after his death it was available for partition, the same would have gone 8 to the shares of his legal heirs who were plaintiff, defendant Nos. 2 to 4 and two daughters Indubai and Rajubai. Absolutely, no reason to interfere with the judgment and decree passed by the District Court. 13. Hence, second appeal is dismissed. pend/sa133.87 (P.R.BORKAR, J.) 9