1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1618 OF 2005 Kisan @ Krishna Shivram Patil, Since deceased through heirs 1A Shri Maruti Kisan Patil & ors. : Appellants Versus Shri Ganpat Pandurang Suryavanshi & ors. : Respondents Mr.S.J.Ghogare for the Appellants. Mr.R.G.Ketkar for the Respondents. CORAM : R.M.SAVANT, J DATED : JULY 21, 2008 P.C. 1. The above Second Appeal arises out of the Judgment and Decree dated 7/7/2005 passed by the learned Addl.District Judge, Karad, Dist.Satara by which the Judgment and Decree dated 16/8/2004/ passed by the learned Civil Judge, Senior Division, Karad decreeing the suit partly has been confirmed. 2 2. The Appellants are the original Defendant Nos.1 and 2 in Regular Civil Suit No.157 of 2000 filed by the Respondents herein for a declaration and injunction in respect of land bearing Survey No.6/2 i.e. Final Plot No.209. It was the case of the Plaintiffs in the said suit that the said land has come to them as it has come to the share of their father Pandurang in the partition that had taken place amongst the brothers of Pandurang in the year 1972. The Plaintiffs, therefore, had filed the said suit for the said reliefs. 3. On the other hand it was the case of the Defendants that the said property was original owned by Dnyanobapuri Gurkushapuri Gosavi of which one Vishnu Patil was the tenant. The said Dnyanobapuri Gosavi, by will deed dated 4/12/1951 had bequeathed the said property to Defendant No.1 who had later on by gift deed bequeathed the same to Defendant No.2. It was the case of the Defendants that, the Plaintiffs, being the heirs of deceased Pandurang, could not claim a share in the property of the said Vishnu as Pandurang, through whom the Plaintiffs were claiming, had gone in adoption in the year 1936. 3 4. The trial Court on the basis of the evidence that was before it, as on the basis of the Court Commiossioner's Report and, also relying upon the decree passed in Regular Civil Suit No.570 of 1940 and the compromise decree passed therein came to a conclusion that the suit Survey No.6/2 had come to the share of Pandurang and that the Plaintiffs are in possession of the property in question and, therefore, partly decreed the suit, but however, rejected the declaration sought by the Plaintiffs. 5. Aggrieved by the Judgment and Decree passed by the trial Court, the Defendant Nos.1 and 2 filed an appeal being Regular Civil Appeal No.150 of 2004. In the said appeal, the Judgment and Decree passed by the trial Court came to be confirmed. On behalf of the Appellants reliance is sought to be placed on the will deed dated 4/12/1951 executed by the said Dnyanobapuri Gosavi. It is contended that on account of the said will deed the defendants have become absolute owners of the suit property. The trial Court has recorded a finding of fact that that the said will deed has been proved. 4 The lower Appellate Court has reversed the said finding. The lower Appellate Court observed that though the will is of the year 1951, the defendants have chosen to produce the said will in the year 1998 i.e. almost after lapse of 47 years. The lower Appellate Court also observed that though the proceedings had been initiated as regards issuance of certificate of tenure and title of the suit plot, the defendants had not chosen to produce the said will neither had they relied upon the same. The lower Appellate Court also observed that the said will deed appears to be restricted to only one land i.e. Survey No.6/5 and that land bearing Survey No.6/2 seems to have been inserted later on. The lower Appellate Court further observed that the testator died immediate after two days of the alleged execution of the said will deed. The lower Appellate court, on the basis of revenue record as well as the Commissioner's Report, came to a conclusion that the Plaintiffs were in possession of the suit property. The Plaintiffs were also held to be in possession in veiw of the order dated 25-09-2000 passed on the application for temporary injunction i.e. Exhibit-5 in the said suit which has achieved finality. 5 6. Both the Courts below have recorded findings of fact on the basis of the material that was before them. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law . The above Second Appeal is accordingly dismissed. In view of dismissal of the above Second Appeal, the Civil Application Nos.2363 of 2005 and 2364 of 2005 do not survive and the same are disposed of as such. [R.M.SAVANT, J]