1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 936 OF 2009 Kautik Omkar Bankar, R/o. Wangi (Kh), Tq. Sillod, Dist. Aurangabad. ....Appellant. Versus Sherkhan s/o. Akbar Khan Pathan R/o. Wangi (Kh), Tq. Sillod, Dist. Aurangabad and others ....Respondents. Smt. M.D. Thube-Mhase, Advocate for the appellant. Shri. M.G. Mustafa, Advocate for respondent Nos. 1 to 3. CORAM : R.M. BORDE, J. DATE : 26th February, 2010 ORAL ORDER : 1. Heard Smt. Mhase, counsel appearing for the appellant. 2. This is an appeal by the original plaintiff raising exception to the judgments and order passed by the Courts below. The plaintiff claims his entitlement to the suit property on the basis of will deed alleged to have been executed by Girajabai and Shahuba, who were closely related to the plaintiff. The plaintiff claims that on demise of both husband and 2 wife, he became entitled to the property in dispute, whereas the defendants have claimed that during lifetime of the testator, the property was alienated by him in favour of defendant No. 2, who in turn disposed of the property by executing the sale deed in favour of defendant No. 1. On consideration of evidence placed on record by the parties, the trial Court recorded finding that before demise of testator, the property was already alienated by him in favour of defendant No. 2 and mutation entries were also effected. It also further transpires that immediately thereafter defendant No. 2 parted with the property by executing sale deed in favour of defendant No. 1. Thus, at the time of death of the testator, the property which is said to have been bequeathed in favour of plaintiff, was already disposed of. The trial Court further recorded finding that the plaintiff has failed to establish his possession in relation to the disputed property. The findings on facts recorded by the trial Court have been confirmed by the first appellate Court while dealing with the Regular Civil Appeal No. 344/2004. I have perused the judgments recorded by both the Courts below and heard the arguments advanced by the counsel appearing for the appellant. 3. It is contended by the counsel appearing for the appellant that the sale deed in question allegedly executed by Shahuba in favour of defendant No. 2 has not been placed on record, nor the same has been proved in accordance with the provisions of the Evidence Act. However, on consideration of evidence i.e. the copy of the sale deed as well as the 3 copy of mutation register, it transpires that the property in question was already alienated by the testator before his death. There is no specific denial to the sale deed which is said to have been executed by Shahuba in favour of defendant No. 2. In the absence of challenge to the sale deed in question, I am of the opinion that the Courts below were justified in placing reliance on the documentary evidence in the form of copy of mutation register as well as the copy of the sale deed, to arrive at finding that the property in question was already transferred by the testator during his lifetime. Therefore, so far as the possession of the plaintiff in relation to the disputed property is concerned, he has failed to substantiate his case in that regard. The findings of the Courts below passed on the appreciation of the evidence need not be interfered with while dealing with the second appeal under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in this appeal. The appeal is, therefore, stands dismissed. 4. In view of the dismissal of appeal, pending civil application, if any, does not survive and hence, stands disposed of. [ R.M. BORDE, J. ] ssc/sa936.09