1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. SECOND APPEAL NO.72/2007. Dadarao Wamanrao Bhuyar thr.L.Rs. ..vs.. Baburao Wamanrao Bhuyar and 7 ors. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= CORAM: C.L.PANGARKAR,J. DATE : 15th February, 2008. 1. Heard Mr.Chandurkar, Advocate for the appellants and Mr.M.N.Ingle, Advocate for the respondents. 2. This is a second appeal by the defendant against whom decree was passed by the first appellate court. 3. The plaintiffs are the brothers and sisters of defendant. They instituted a suit for partition and separate possession of the property left behind by their mother Kokilabai. The suit was resisted by the defendant only on one ground that Kokilabai had executed a Will in his favour and therefore, he was a sole 2 owner of the suit property. It is not in dispute that Kokilabai was the absolute owner of the suit property. 4. The trial court found that the defendant had failed to prove the Will in his favour. The trial court, however, did not decree the suit in favour of the plaintiffs even though it found that the Will in favour of defendant has not been proved because of the fact that it found that if the property is partitioned, it would create a fragment and therefore the suit could not be decreed. He, therefore, dismissed the suit. 5. The plaintiffs preferred first appeal before the District Judge. The District Judge found that each of the plaintiffs and the defendant had 1/7th share in the suit property and since the defendant did not challenge the finding that Will was not proved, that finding had assumed finality. Holding so, the learned judge of the first appellate court decreed the suit holding that each of the plaintiffs and defendant had 1/7th share. 6. Mr.Chandurkar, the leaned counsel for the appellant submits that the first appellate court had fallen in error in holding that the finding recorded by the trial court with regard to the Will had assumed finality. He submitted that such finding could have challenged by the appellant though there being any appeal or cross- objection. It is not disputed that the defendant did not 3 prefer any appeal or cross-objection against the findings or in respect of the execution of the Will. But it appears from the observation of the first appellate court that such point was not even urged before it. Since such point was not urged and no cross-objection was preferred, there is no question of the judge deciding the said question once again. As a result, the decision as cited by Mr.Chandurkar, learned counsel for the appellants, reported in AIR 1999 SC 3571 (Ravinder Kumar Sharma ..vs.. State of Assam and others) has no bearing on the case at hand. The undisputed fact is that the suit property belonged to Kokilabai – the mother of the plaintiffs and the defendant. Since Will has not been proved, she could be said to have died intestate. Each of the plaintiffs, therefore, rightly held to be entitled to 1/7th share in the suit property. No substantial question of law is involved in the matter. The appeal is dismissed in limine. JUDGE pzc