sa240-10.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 240 OF 2010 WITH CIVIL APPLICATION NO. 690 OF 2010 IN S.A. NO.240/2010 Smt. Kalawati Baburao Mane ... Appellant V/s. Mr. Shashibhushan Vishnu Mane & Anr. ... Respondents. --- Mr. Rahul S. Kate for the Appellant. Mr. Vishwanath Talkute for Respondent No.2. --- CORAM:- G.S.GODBOLE, J. DATED :- 19th SEPTEMBER, 2011. P.C. : 1 Heard. 2 The Respondents have filed RCS No. 327 of 1986 for perpetual injunction against the Appellant on 16.7.1986 on the ground that they had inherited the suit land from their grand-father -Laxman on the basis of the Will dated 4.2.1983 after the death of Laxman on 14.4.1984. Pending the Suit, the Plaint was amended and the alternative relief for possession was incorporated. The Defendant who is widow of Baburao, son of late sa240-10.sxw 2 Laxman and real brother of Vishnu, father of Respondent, challenged the validity of the Will and also claimed that the land was ancestral property in which she had a share. The learned Civil Judge, Jr. Dvn. Karad partly decreed the suit on 20.12.1996 and though the prayer for perpetual injunction was rejected, a decree for possession was passed. 3 Reg. Civil Appeal No.54 of 1997 filed by the Appellant -Defendant has been dismissed by the learned District Judge, Karad on 18.12.2009. 4 Mr. Kate submitted that the Trial Court did not frame a specific issue regarding validity of the alleged Will; as a result of which the Appellant was unable to lead evidence regarding suspicious circumstances surrounding the Will. He also submitted that no issue of limitation was framed and the Trial Court and the Appellate Court have not considered defence that the possession of the Appellant had become adverse and the suit was barred by limitation. 5 I have considered both the submissions advanced by Mr. Kate and I do not find any merit in any of them. Though a specific issue regarding validity of the Will was not framed, the parties were conscious of the fact sa240-10.sxw 3 that the validity of the Will was the disputed issue. The Plaintiffs led evidence of attesting witnesses. The Will dated 4.2.1983 was produced and proved in evidence and marked Exh. 64. The witnesses were extensively cross-examined by the Advocate of the Appellant. The Appellant did not herself step into witness box but examined her brother - Ananda Yadav as a constituted attorney. In his examination-in-chief he contended that a bogus Will was executed. Thus parties had led evidence about the Will and no prejudice whatsoever could cause on account of non-framing if a formal issue. The Trial Court and the Appellate Court have discussed in all details the aspect regarding due execution and proof of the Will and what ever objections which were raised on behalf of the Appellant, claiming to be the so called suspicious circumstances surrounding the Will, have also been considered. This is a pure finding of fact and no perversity in that finding has been shown. Regarding the second submission about limitation, prima facie there is nothing to indicate that any defence of limitation was raised. Apart from this no plea of having acquired the title by adverse possession was raised. Even in the evidence of the brother of the Appellant, there is no whisper about the possession being adverse. In fact defense raised was of co-ownership and this defence completely militates against theory of adverse possession. sa240-10.sxw 4 Even in the District Court, no submission appears to have been advanced either on the ground of limitation or on the plea of adverse possession by the learned Advocate of the Appellant whose extensive submissions have been recorded in the impugned Judgment and Order. No substantial question of law arises. 6 Second Appeal is dismissed. In view of the dismissal of the Second Appeal itself, the Civil Application No. 690 of 2010 does not survive and the same is also dismissed. [G.S.GODBOLE, J.]