1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 293/2010 (Natha Ananda Paithane & others VERSUS Badrinath Vithoba Mundhe) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri Manoj Kariya, counsel for the appellants. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 29, 2010 . Heard. The appellants are the original defendants. A suit was filed by the plaintiffs for a declaration that he was the owner of the suit property, which comprised of an agricultural land and further sought permanent injunction restraining the defendants from disturbing the possession of the plaintiff over the suit property. According to the plaintiff, the plaintiff had purchased the suit property from one Indirabai in the year 2003. It is pleaded by the plaintiff that on 14.06.2003, when the plaintiff and his family members went for cultivating the field, the defendants caused obstruction to the peaceful possession of the plaintiff over the suit property. Hence, the suit was instituted. 2 The defendants-appellants filed the written statement and pleaded that originally, the property belonged to the Government and the same was leased out to one Chindhaji, their uncle. According to the defendants, Chindhaji, had executed a will making a bequest of the suit property in favour of the defendants. It was the case of the defendants that in pursuance of a partition effected by Chindhaji, Chindhaji had given a right to Indirabai to use half of the suit property during her lifetime. It was pleaded that by the will, limited interest was given to Indirabai and, therefore, Indirabai could not have sold the suit property to the plaintiff. The trial Court dismissed the suit of the plaintiff on the ground that the plaintiff had failed to prove his ownership over the suit property. According to the trial Court since the property was leased out to Chindhaji by Government, Indirabai could not have sold the same to the plaintiff. The trial Court held that the defendants had also failed to prove the counter claim as they had failed to prove the will allegedly executed by Chindhaji making a bequest of the properties in their favour. The trial Court held that it was necessary for the defendants to prove the will by examining at least one of the attesting witness to the same. 3 The first appellate Court, on an appreciation of the evidence on record, held that in view of the Patta granted by the Government in favour of Chindhaji, he became Bhumiswami of the land. After the death of Chindhaji, Indirabai became the owner and she sold a part of the property belonging to Chindhaji admeasuring 1 Hectare 60 ARE to the plaintiff. The first appellate Court confirmed the finding of the trial Court that the defendants had been unsuccessful in proving the will executed by Chindhaji in view of their failure to examine the attesting witness to the same. The findings recorded by the trial Court on the other issues were, however, reversed by the first appellate Court and the first appellate Court held that in pursuance of the sale-deed executed by Indirabai, the plaintiff became the owner of the suit property and the plaintiff also proved that the defendants were trying to dispossess the plaintiff from the suit property. The findings recorded by the first appellate Court are pure findings of facts based on a proper appreciation of the material evidence on record. Even otherwise, the trial Court has also held that the defendants had failed to prove their ownership over the suit property by proving the will alleged executed by Chindhaji in their favour. 4 Since the findings recorded by the first appellate Court do not give rise to any substantial question of law, the second appeal fails and is dismissed with no order as to costs. JUDGE APTE