1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.86 OF 2002 ( with C.A.No.6044/2002) Golayya s/o Rangayya Nallewar, (since deceased through his LR) Kailas s/o Yatirajam Nallewar, Age 21 years, occ. Student, r/o. Sneh Nagar, Basmatnagar, Tq.Basmatnagar, Dist. Hingoli. ...APPELLANT (Orig.Plaintiff) VERSUS Chandrashekhar s/o Golayya Nallewar, Age 37 years, occ. Business, r/o. Widhata Typewriting Institute, Basmatnagar, Tq. Basmatnagar, dist. Hingoli. ...RESPONDENTS (Orig.Defendant) ... Ms.Manjushri Shendage,Adv., h/f Mr. P.R.Katneshwarkar, Adv., for the petitioner. ... CORAM: K.U.CHANDIWAL, J. DATE: 25/11/2010 *** PER COURT : 1. Heard learned Counsel for the appellant. Counsel for the respondent called, absent. Same 2 position on earlier date. Even once he was accommodated. 2. The order of remand of RCS No.89/1989, by the learned second Additional District Judge, Parbhani, dt.28.11.2001, is questioned. Though, while admitting the appeal on 3rd Oct.,2002, no substantial question of law is formulated, now, following could be the substantial question of law between the parties: "a) Whether the learned District Judge was justified in observing in paragraph no.8 that for want of issue relating to the will deed, the matter needs remand notwithstanding there being already issue nos. 2 and 3, answered by the learned Judge of the Court of first instance in RCS No.89/1989 ?" The substantial question formulated is answered in favour of the appellant. 3. While directing remand, the learned District Judge, in paragraph no.8 of his order has observed as under: "8. From the issues framed at Exh.20 by learned trial Judge it reveals that no issue is framed in respect of validity of the will deed alleged is (to) have been executed by deceased Galayya in favour of respondent. When appellant has challenged the validity of the will deed in his written statement by way of amendment it appears that it was necessary is (to) frame a issue in that effect. Unless and until validity or otherwise will deed is decided it was not proper on the part of learned trial judge to 3 hold that respondent acquired title in respect of the suit plot after the death of Galayya on the basis of will deed. Though the suit is simplicitor for perpetual injunction the dispute is in respect of ownership of the suit plot. Under such circumstances, it was essential on the part of the learned trial Judge to frame issue in respect of validity of the will deed. 4. The above observations of the learned Judge are contrary to the record as the issues, which are recorded and answered by the learned Civil Judge, Junior Division, indicated in paragraph no.4 of his judgment, read as under: S r N o ISSUES FINDINGS 1 Does plaintiff prove that deceased plaintiff Galayya was the owner and possessor of suit property on the basis of alleged partition ? Affirmative 2 Does plaintiff prove that he became owner and possessor of suit property by virtue of registered will deed No.47 dated 10.1.1991 ? Affirmative 3 Does defendant prove that plaintiff's father got executed will deed from deceased plaintiff by dominating his will ? Negative. 4 Does defendant prove that he agreed to transfer suit property in the name of his mother on payment of Rs.10,000/- by father of present plaintiff ? Negative. 5 Does defendant prove that he is still in possession of suit property ? Negative. 6 Reliefs and costs ? As per final order. 4 5. Thus, issue no.2 and 3 comprehensively deal with the registered will deed dt.10.1.1991 and mandates the plaintiff to prove that he became owner and possessor based on such will deed. There was a burden cast on the defendant to prove that the plaintiffs father got executed the will deed from deceased plaintiff by dominating the former's will. In this situation of the matter, there was no requirement as was directed by the learned District Judge in paragraph no.8 referred above. Since the issue referred above illustrated to deal with the validity or otherwise of the will deed, flowing and cherishing rights in favour of the party claiming, based on such will deed, there was no requirement, as has been directed by the learned District Judge. The learned District Judge, obviously, lost track of the issues and was swayed away with surmises. The impugned order calls for interference and, consequently, is set aside. The decree in RCS No.89/1989 to remain intact. Civil Application disposed of. (K.U.CHANDIWAL) JUDGE agp/86-02ao