1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 534 OF 1991 Satwa Gyanoba Kaswade ....Appellant. Versus Anusayabai w/o. Bhanudas Wavare ....Respondent. Shri. A.G. Dalal Advocate h/f. Shri. V.D. Salunke, Advocate for the appellant. CORAM : R.K. DESHPANDE, J. DATE : 12th August 2009 ORAL JUDGMENT : 1. This appeal is preferred by the original defendant against the judgment and order dated 16th of September 1991 passed in Regular Civil Appeal No. 46/1986, delivered by the IInd Additional District Judge, Jalna. The respondent No. 1 is the original plaintiff. (The parties shall hereinafter referred to as 'plaintiff' and 'defendant' according to their original status). 2. The plaintiff filed a suit being Regular Civil Suit No. 210/1984, 2 seeking partition and separate possession in respect of Gat No. 59, area admeasuring 2 heaters 95 R., assessed at Rs.12.20 ps. situated at village Gori; Gat No. 64x60 ares assessed at Rs.2.60 ps. situated at village Domalgaon and open space having a house of 5 Khans 45 feet East-West in length and 33 feet North-South in breadth situated at village Domalgaon, Taluka Ambad. The plaintiff claimed that she was the only successor and legal heir of deceased Gangaram, who was her father. The defendant is the uncle of the plaintiff. According to the plaintiff, the defendant and Gangaram remained undivided till 1965 and the suit property were also undivided. It is further alleged that her father and the defendant had mortgaged the suit land Gat No. 59, old survey No. 32/2, to one Natha s/o. Vithoba and both of them redeemed the said land. According to her, her father was suffering from tuberculosis and therefore, the defendant was looking after the affairs of the family. She further alleged that there was no partition which took place between her father and the defendant at any time and by virtue of coming in to force of Hindu Succession Act, 1956, she was entitled to inherit the property of her father. 3. The claim of the plaintiff was disputed by the defendant, essentially on the ground that the father of the plaintiff died prior to coming in to force of the Hindu Succession Act, 1956 and therefore, the plaintiff was not entitled to get share in the suit property on the basis of the provisions of the Hindu Succession Act, 1956. The defendant further 3 contended that Gangaram died before 1950 and after his death, the defendant became the owner of the suit property by way of survivorship and the plaintiff was not entitled to claim any interest in the property. 4. The learned Judge of the trial Court framed issued as "Does the plaintiff prove that her father Gangaram died in the year year 1965 ?"and the said issue was answered in negative. It was held that the evidence of the plaintiff and her witnesses is completely oral on the point of the year of death of Gangaram and in the absence of the documentary evidence, it was difficult to believe this evidence. It was further held that the plaintiff has failed to prove that her father Gangaram died in the year 1965. It was further held that the plaintiff has failed to prove that her father died after commencement of the Hindu Succession Act, 1956 and therefore, the issue was accordingly answered in negative and the suit was dismissed. 5. The plaintiff preferred an appeal being Regular Appeal No. 46 of 1986, which was decided by the IInd Additional District Judge, Jalna. The appeal was allowed. It was declared that the plaintiff has 1/2 share in the suit properties described in the plaint and the partition of the suit property be effected by appointment of the Court Commissioner in final decree proceedings. It has further been directed that the partition of lands be effected by the Collector or any Gazetted Sub-ordinate, deputed by him in this behalf as per section 54 of the Civil Procedure 4 Code. The appellate Court reversed the findings of the trial Court that the father of the plaintiff died before 1956 i.e. before coming into force of the Hindu Succession Act, 1956. The appellate Court relied upon the oral evidence of the plaintiff, the other witness Narayan- P.W. 2 and on the evidence of the defendant at Exh. 20. The appellate Court also relied upon Exh. 7, which was the mutation entry effected on 6th of July 1958 in the name of Gangaram. The appellate Court also relied upon Exh. 8 , an extract of mutation dated 22nd of November 1960 in respect of the suit property. On the basis of these mutation entries, the appellate Court recorded a finding that Dyanoba, the father of the defendant, was alive on 22nd November 1960 and the respondent Satawa deliberately told false thing about it in his statement. It was further held that one thing is clear from the the evidence of respondent Satwa that Gangaram had survived his father and therefore, the documents at Exhs. 7 and 8 helped the appellant. 6. This second appeal was admitted on 4.12.1991. However, no substantial question of law was framed at the time of admitting of this appeal. This matter was listed before this Court on 10th of July 2009 and it was made it clear that the appeal was admitted without formulating any substantial questions of law. This matter was called on 11.8.2009 and the learned counsel for the appellant was informed to prepare the substantial questions of law, involved in the matter and to address upon the same, to this Court. Accordingly, the learned counsel for the 5 appellant has framed substantial questions of law which are reproduced below :- "1. The gross error committed by the Learned first-appellate Court, while appreciating the evidence on record, and, thereby, drawing absolute wrong conclusion that the father of the plaintiff, died after 1956, that is, after commencement of Hindu Succession Act. 2. Findings recorded by the Learned first- appellate Court are perverse ." The aforesaid substantial questions of law are formulated by the learned counsel for the appellant, by filing a pursis. It is taken on record and marked as Exh.' X' for the purpose of identification. 7. Bare perusal of the question of law at Sr. No. 1 clearly indicates that in fact, it is not at all a question of law, but a question of fact. It pertains to the realm of appreciation of the evidence and drawing the conclusions based thereon. The question, whether the father of the plaintiff died after 1956 i.e. after the commencement of the Hindu Succession Act, is purely question of fact. Hence, in my opinion, the question of law framed at Sr. No. 1 is not at all a question of law, much less the substantial question of law. 8. So far as the second question is concerned, i.e. the findings of the first appellate Court being perverse, I am of the opinion that the finding 6 is supported by the evidence of not only the plaintiff and his witness, but also the oral evidence of the defendant. The appellate Court has taken in to consideration two documents and after appreciating the evidence available on record, has recorded the finding that the father of the plaintiff died after coming in to force of the Hindu Succession Act, 1956. While recording such finding, the same evidence which has been appreciated by the trial Court was taken in to consideration. Thus, the findings recorded by both the Courts below clearly and unmistakably point out that two divergent views are possible. Hence, it cannot be said that the findings recorded by the appellate Court, in any manner, is perverse. The findings are based upon the oral as well as the documentary evidence. It also cannot be said that the findings are not supported by any evidence at all. It is not the case that the findings recorded by the appellate Court is based upon any irrelevant material. In view of this, in my opinion, it cannot be said that findings recorded by the appellate Court are perverse. Hence, the question is answered accordingly. 9. In view of above, there is no substance in the present appeal and the same is, therefore, dismissed with no order as to costs. [ R.K. DESHPANDE, J. ] ssc/sa534.91