1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APEPAL NO.263 OF 2010 [MOHAN SHANKAR KHEDKAR ..VS.. SMT. USHA MADHUKAR BHAGWAT AND ORS] AND SECOND APPEAL NO.265 OF 2010 [MOHAN SHANKAR KHEDKAR ..VS.. SMT. USHA MADHUKAR BHAGWAT & ORS] Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order Shri A.S. Kilor, Advocate for appellant Shri A.V. Bhide, Advocate for respondent C ORAM : SMT. VASANTI A NAIK, J. DATED : 12 th JULY, 2010 . Heard learned counsel for the parties. Since common questions of facts arise for determination in these two appeals they are heard together at the stage of admission and are decided by this common order. Two suits were instituted by the appellant Mohan, one against Usha and second against Usha and his other brothers and sisters by name Indu, Sharad, and Vasanta for declaration of his tittle and perpetual injunction restraining the defendants from interfering with the plaintiff’s possession over the suit properties. According to the plaintiff initially the land was owned by Shankar. Shankar had two sons, Mohan and Vasanta and two daughters Usha and Indu. Shankar possessed some ancestral property and hence Vasanta one of the sons of 2 Shankar had filed Regular Civil Suit No.254/1969 against Shankar, Usha, Indu, Mohan and wife of Shankar by name Bhimabai for partition and separate possession. The suit filed by Vasanta was decreed and the shares of the parties were determined. Shankar and his two sons received 1/5th share, whereas Bhimabai received 2/5th share in the property. It is the case of the plaintiff that after the partition decree, Vasanta separated from the joint family, but plaintiff remained to be joint, with his father – Shankar. It is pleaded in the plaint that Shankar had during his life time disposed of certain properties to various persons and also made a bequest of some of the properties by will in favour of the defendant Usha. It was pleaded that Shankar had no authority to execute the will and make a bequest of the property in favour of Usha without the consent of the other members of the family. The Plaintiff, therefore, sought for a declaration that the will executed by Shankar in favour of Usha was null and void. The plaintiff filed yet another suit against his brother and sisters for a declaration of his ownership and permanent injunction. The suits were resisted by the respondents by filing written statement. They denied that the plaintiffs were joint in status. The defendant pleaded that Shankar had executed a will and made a bequest of the properties in favour of Usha and Indubai and their mother Bhimabai 3 had also made a bequest of the property in favour of her daughter. It was pleaded that the suits filed by the plaintiff were false and vexatious and were liable to be dismissed. Both the courts on an appreciation of the evidence on record held that the plaintiff failed to prove that he was the owner of the suit property. The courts held that the plaintiff did not succeed in proving that the will executed by Shankar was void and illegal. The courts held that the plaintiff was not entitled to grant of injunction as prayed by him. The courts held on a proper appreciation of the evidence on record that the plaintiff had failed to prove the jointness in estate with Shankar after the decree in the partition suit. The oral testimony of the witnesses was considered along with the documentary evidence on record to record the aforesaid finding. It was observed by both the courts that Shankar had sold out some of his properties to various persons and even the plaintiff had sold some of his properties to third parties. In such circumstances, the courts held that it was difficult to believe that the plaintiff and Shankar were joint in estate even after the partition decree. The plaintiff had also not challenged the alienations made by Shankar to various persons. This further showed that the properties of Shankar and the plaintiff were separate and distinct. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the material 4 evidence on record. They do not give rise to any substantial question of law. The judgment reported in 2008 (5) SCC Page 268 and relied by the counsel for the appellant can not be of any assistance to the case of the appellant as in the said case it was held by the Hon. Supreme Court that if the finding recoded by the first appellate court is totally perverse then the high Court can interfere in the matter as it constitutes a substantial question of law. Such is not the case here. Since no substantial question of law arises for determination in these second appeals, they are dismissed with no orders as to costs. JUDGE SMP.