1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.ST NO. 11896 OF 1997 Jaynarayan Laxminarayan Sharma Appellant. (orig. plaintiff ) v e r s u s Laxminarayan s/o Tularam Sharma and one another. Respondents. (orig. defts.) Mrs. Asha Rasal , advocate for the appellant. Shri A.M.Gholap , advocate for Respondents. CORAM: R. M. BORDE, J. DATE : 18TH AUGUST, 2009. P.C.: 1. This is a second appeal raising an exception to the concurrent findings, recorded by the Courts below. 2. The plaintiff has instituted a suit claiming declaration that the judgment and decree passed by the learned Civil Judge junior Division, Jamner in RCS No. 6/1967 in favour of defendant No.2 Shaligram pertaining to house no. 478 situated at Mauje Jamner, be declared as null and void and not binding on the plaintiff. The plaintiff also claims recovery of possession of the suit property. According to the plaintiff, the property was owned by one Jivram Badriprasad Sharma, who had executed a registered will deed in favour of the plaintiff. It is his contention that in view of the will deed executed by Jivram on 24.04.1967 he became entitled to the property and his father i.e the defendant No.1 had no entitlement to alienate the property. It is his contention that his father had executed an agreement of sale in favour of the defendant No. 2 2 without having any entitlement to alienate the property. The defendant No.2 had filed a suit for specific performance of agreement bearing No. 6/1967 against his father/defendant No.1. The said suit came to be decreed and the decree of specific performance was granted in favour of defendant No.2. According to the plaintiff the decree passed in RCS No.6/1967 is not binding on him. The defendant No.1, father of plaintiff though caused his appearance did not file his written statement nor contested the suit. The suit was contested by the defendant No.2 who presented his written statement and resisted all the contentions raised by the plaintiff in the plaint. It is the defendant No.1 father of the plaintiff, who was the owner of th property. It has also been contended that there was another civil suit bearing RCS No.25/1970 presented by plaintiff which came to be withdrawn. The trial court after considering the evidence of the parties dismissed the suit by judgment and decree dated 08.04.1987. The plaintiff raised challenge to judgment and decree passed by trial court by presenting RCA No.15/1990, which came to be heard and decided by the 5 th Additional District Judge Jalgaon who was pleased to dismiss the same. 3. I have perused both the judgments recorded by the Courts below. So far as alleged will deed dated 25.04.1967 is concerned both the courts below have recorded the findings that the will deed on the face of it appears to be a fabricated document and it cannot be read in evidence. It was recorded by the Courts below that signatures appearing on the document appears to be over written. Earlier writing of the date 24.04.1967 has been over written as 24.04.1968. This change has been 3 effected obviously to support the claim of the plaintiff. The fact that decree was passed by the Trial Court in RCS No.6/1967 on 01.02.1968 cannot be over looked. The findings of fact recorded by the Courts below in respect of validity of the will deed need not be disturbed while dealing with the instant second appeal. It is also to be noted that deceased Jivram who is alleged to have executed the will deed in favour of the plaintiff was signatory to sale which was executed in favour of defendant No.2 by defendant No.1. In these circumstances, the Courts below are justified in turning down the case put up by the plaintiff. This appeal does not give rise to any substantial question of law. The appeal therefore stands dismissed. ( R.M. BORDE ) JUDGE ******* aaa/11896.97