1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 506 OF 2010 Laxman s/o Kerappa Bhalke ...Appellant (Original Plaintiff) VERSUS Narayan Kerappa Bhalke & ors. ...Respondents (Original Defendants) ..... Shri S.J. Salunke, advocate for the appellant (original plaintiff) Shri Abhijit Namde, advocate for respondent no. 1 absent ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 19 th January, 2011 PER COURT : 1 Heard Shri S.J. Salunke, learned counsel for the appellant (original plaintiff). Shri Abhijit Namde, advocate for respondent no. 1 absent. 2 The unsuccessful plaintiff i.e. appellant, who has lost before the Trial Court as well as the First Appellate Court has filed 2 the present Second Appeal. Accordingly, there are concurrent findings against the plaintiff/appellant herein. 3 The parties are referred herein after as per their original status i.e. ‘the plaintiff’ and ‘the defendants’. 4 The plaintiff filed Regular Civil Suit No. 36 of 2006 for the declaration of ownership to the extent of 2 acres and 13 gunthas land out of Gat No. 293, situated at village Kankhed and also for perpetual injunction against the defendants. The defendant no.1 is the brother of the plaintiff and defendant nos. 2 and 3 are the married sisters of the plaintiff. It is the case of the plaintiff that he is the owner and possessor of the suit property by virtue of a will executed by his mother Subhabai, who purchased the suit property by registered sale deed dated 29.4.1988. Thus, according to the plaintiff, the suit property was self acquired property of his mother, and therefore, she has right to dispose of the same in accordance with her wish. It is also the case of the plaintiff that he alone was maintaining and taking care of his mother Subhabai, and since she has more love and affection towards him than the defendant, she executed a will in his favour and by virtue of the said will, he became the owner and possessor of the suit property. It is also contended by the plaintiff 3 that the defendants have signed the will in presence of the witnesses, and therefore, they cannot deny the fact of execution thereof. The plaintiff further contended that the defendants caused obstruction to his peaceful possession and enjoyment of the suit property on 23.6.2006, and hence, the plaintiff filed the suit for declaration of ownership and perpetual injunction on the basis of the said will. 5 The contesting defendant no.1 filed the written statement and resisted the suit claim vehemently and contended that the plaintiff is not the owner of entire suit property and he also denied that the suit property was exclusively owned by deceased Subhabai and further contended that it was not her self acquired property. In the said context, it is the contention of the defendant no.1 that at the time of sale deed, the plaintiff and defendant no.1 paid Rs.15,000/- each for purchasing the suit property to Nandlal Dhoot i.e. the previous owner thereof. Defendant no.1 also denied the execution of will and signature on it as will as notarization thereof. According to defendant no.1, the plaintiff had prepared false will showing him as owner and possessor of the suit property by virtue of the sale deed. It is further contended by defendant no.1 that after death of Subhabai, mutation entry was sanctioned and names of the plaintiff 4 and the defendant were entered into 7/12 extract by mutation entry no. 1662. 6 After considering the pleadings and evidence adduced and produced by the respective parties on record, the learned Trial Judge dismissed the suit on 19.7.2007. Being aggrieved and dissatisfied by the said dismissal of the suit, the plaintiff preferred Regular Civil Appeal No. 96 of 2007 before the District Court, Parbhani. However, the learned District Judge-3, Parbhani also dismissed the said appeal by judgment and order dated 28.2.2010. Feeling aggrieved by the said dismissal of the suit as well as the appeal, the plaintiff has assailed the same in the present Second Appeal. 7 At the out set, as regards the contention of the plaintiff that the suit property belonged to deceased Subhabai as her self acquired property, there is no pleading to show that Subhabai was earning something and she purchased the suit property with her own funds. It is also not the case of the plaintiff that she got Rs.30,000/- from any other source. In the said context, defendant no.1 contended that he and the plaintiff paid Rs.15,000/- each to purchase the suit property, which is not denied during the cross-examination. 5 In fact, the burden was upon the plaintiff to prove that it was self acquired property of Subhabai and the First Appellate Court has rightly observed that vague evidence of payment of consideration of Rs. 15,000/- adduced by the plaintiff is not acceptable, and consequently, the plaintiff failed to prove that the suit property was self acquired property of Subhabai. 8 As regards execution of the will by deceased Subhabai in favour of the plaintiff, the learned Trial Judge has observed that the star witness PW2 Ashok Yeske has not supported the case of the plaintiff to the extent of execution of will at the office of Notary and said witness contradicted the theory of the plaintiff and arrived at the conclusion that the evidence of PW2 is not of any aid to corroborate the evidence of PW1, although he was close relative of the plaintiff and the defendants. In the said context, the learned First Appellate Court observed that the plaintiff got executed the will in his favour by using undue influence on his mother and the execution of will is surrounded by suspicious circumstances and it is a suspicious document, and consequently, the plaintiff failed to establish his title over the suit property by virtue of will and arrived at the conclusion that the plaintiff is not entitled for declaration that he is owner of the suit property as well as not entitled for perpetual injunction and the 6 finding arrived at by both the Trial Court as well as the First Appellate Court, after assessing the evidence on record, does not appear to be perverse, and hence, same does not call for any interference in the Second Appeal. 9 In the circumstances, no substantial question of law could be formulated, and therefore, present appeal lacks merits and same stands dismissed. (SHRIHARI P. DAVARE, J.) dbm/sa506.10