1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 261 OF 2006 WITH CIVIL APPLICATION NO. 521 OF 2006 Yashwant Gopal Chanekar ........Appellant versus Radhabai Gopal Ghanekar since deceased through L.Rs. Savita Govind Patwardhan since deceased through L.Rs. 1/1 Sau. Varsha Vishwas Vidhwans & ors..... Respondents. Mr. R.S. Apte with A.A. Garge for the Appellant Mr. T.S. Ingale for the respondents CORAM: RANJIT V. MORE, J. DATED : 24th NOVEMBER,2008. P.C.: 1. Heard Mr. Garge learned counsel for the appellant and Mr. Ingale for respondent nos.1 to 3. The appellant is the original defendant no.1 and Radhabai the mother of respondent nos.1 to 3 was the plaintiff in a regular civil suit no.251/88. Suit was filed for possession of the suit property. It was the case of Radhabai that she became owner of the suit property by virtue of partition deed at Exh.88. In the year 1987 Radhabai died and the present respondent nos.1 to 3 were brought on record as legal heirs and representatives of Radhabai, since suit property was bequeathed 2 in favour of respondent nos.1 to 3 by virtue of will deed at Exh.109. The appellant/defendant no.1 was also relied on one will deed allegedly executed by deceased Radhabai which is exhibited at Exh.121. 2. The lower courts below on the basis of evidence on record and documents at Exh.88 i.e. deed of partition held that deceased Radhabai is entitled for possession of the suit property from appellant/defendant no.1. So far as the present respondent nos.1 to 3 are concerned, they claimed succession of the suit property on the basis of will deed at Exh.109 executed by deceased Radhabai. The appellant/defendant no.1 also claimed possession of the suit property by virtue of alleged will at Exh.121. Lower courts below considered both the wills and accepted the will at Exh.109 which was in favour of the respondent nos.1 to 3. The will deed in favour of the appellant/defendant no.1 at Exh.121 was held not proved. Consequently appellant/defendant no.1 is directed to hand over possession to respondent nos.1 to 3. 3. The respondent nos.1 to 3 examined attesting witness Chintamani and accordingly proved the will at Exh.109. As far as the alleged will at Exh.121 is concerned, the same was executed on 8-2-1979 i.e. much prior to the execution of the will at Exh.109, which was executed on 22/10/1980. Mr. Garge learned counsel for the appellant submitted that the courts below could not have gone into the entitlement of respondent nos.1 to 3 3 on the basis of will at Exh.109 in the absence of any pleadings or issue in that record. I have perused the judgments of lower courts below. In both the judgments, there is issue about entitlement of respondent nos.1 to 3 to the suit property by virtue of will deed at Exch.109. The issue was also framed in respect of claim of appellant/defendant no.1 on the basis of alleged will deed at Exh.121 and after appreciating evidence on record the lower courts below arrived at the conclusion as stated above. So far as the submission of Mr. Garge that there is no pleading is concerned, in my opinion, same has no merit in as much as the respondent nos.1 to 3 stepped in the shoes of the original plaintiff Radhabai in the year 1987. In any case both the parties contested the respective wills, and the appellant/defendant no.1 cannot be said to have taken by surprise. No prejudice can be said to have caused to the appellant. In my considered view, the lower courts below have approached the case from correct point of view. No case is made out so as to enable me to interfere in the aforesaid second appeal by exercising power under section 100 of CPC. Second appeal is therefore dismissed. 4. In view of the dismissal of the second appeal, civil application does not survive and the same is also dismissed. (R.V. More, J.)