1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.201/2010 [DILIP HIRALAL GANDHI ..VS.. VIJAY MOTILAL AGRAVAL] AND SECOND APEPAL NO.202/2010 [NANDU HIRALAL GANDHI & ORS ..VS.. VIJAYKUMAR MOTILAL AGRAWAL] Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order Shri A.V.Bhide, advocate for the appellant. C ORAM : SMT. VASANTI A NAIK,J. DATED : 22nd June, 2010. Heard Shri Bhide, the learned counsel for the appellant. Since common question of facts arise for determination in these two appeals, they are heard together and are decided by this common order. The respondent Vijaykumar in both the appeals had filed separate suits against the two appellants Dilip and Nandu for eviction, possession and arrears of rent. According to the plaintiff - Vijaykumar he was the owner of the property and Tulsabai had made a bequest of the suit property in favour of the plaintiff. The plaintiff had obtained a probate of the will dated 24.7.1975 on 23.12.1994 in Succession Case No.5/1992. The plaintiff claimed to be the owner of the entire suit property in which the appellants/ defendants were residing as tenants. The plaintiff pleaded that the defendants' tenancy was forfeited by a notice issued by the plaintiff and therefore, the plaintiff was entitled to the possession of the property. 2 The defendants/ appellants denied the claim of the plaintiff. It was admitted by defendants/ appellants that Tulsabai was the owner of the property and that she had died issue-less. The defendants however, denied that Tulsabai had executed a will dated 24.7.1975 and a bequest of the suit house was made to the plaintiff. According to the defendants the suit property belonged to a trust namely Jagdamba Devi Temple. The defendants pleaded that the Assistant Charity Commissioner, Akola had held that the will was shrouded with suspicious circumstances. The defendants sought for the dismissal of the suit. The trial as well as appellate court on a consideration of the evidence on record held that the plaintiff succeeded in proving that Tulsabai had executed a will dated 24.7.1975 and had made a bequest of the suit property in favour of the plaintiff. Both the courts held that the plaintiff became owner of the suit property by virtue of the will. The courts then held that the probate issued in the succession case no.5/1992 was legal and valid. The courts however, held that the defendants were not the trespassers and in wrongful possession of the suit property and they had also not forfeited their tenancy rights. The courts dismissed the suit of the plaintiff for eviction and of possession on the ground that the permission of the Rent Controller was required before institution of the suit. The courts however, decreed the suit of the plaintiff in regard to the prayer made for arrears of the rent. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of material evidence on record. The courts considered that the Additional District Judge Khamgaon had held in M.J.C. No.7/82 decided on 4.5.1990, that the property of Tulsabai was a private property and succession would be in accordance with provisions of law. The courts relied on the order in 3 the succession case by which the probate was granted to the plaintiff. The courts considered the evidence of the attesting witnesses to the will and other evidence on record to hold that the will dated 24.7.1975 was valid and Tulsabai had bequeathed her suit property to the plaintiff and he was the owner thereof. In such circumstances, the courts rightly granted a decree for arrears of rent though the suit for eviction and possession was dismissed in the absence of permission from the Rent Controller. Since no substantial question of law arises for consideration in these second appeals, they are dismissed with no order as to costs. JUDGE SMP