{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.793 OF 2010 Peshibai Devidas Gabda, age: 53 years, Occ: Household, R/o Kumarnagar, Block No.E-1, Room No.1, Dhule, District Dhule. Appellant Versus 1 Prakash s/o Bhishweshwarlal Kanugo, age: 42 years, Occ: Business, R/o Aboli, Plot No.23, Ashok Nagar, Jamnagiri Road, Dhule 424 001. 2 Shivdas Sitaram Chaurasiya, } (deceased) through legal heirs } (respondents no.3 to 7 hereunder) } } 3 Onkar Shivdas Chaurasiya, } age: 39 years, Occ: Business, } R/o CTS No.2903, Galli No.4, } Dhule 424 001. } } 4 Shamabai Radhesham Chaurasiya, } age: 35 years, Occ: Household, } R/o Sarvodaya Nagar, Sitaram Mandir, } Room No.4, Apsara Chal, Bhandup, } Mumbai. } Respondents No. } 2 to 8 deleted 5 Kusumbai Fulchand Chaurasiya, } vide Court’s age: 42 years, Occ: Household, } order dated R/o C/o Gulabchand Fulchand Chaurasiya, } 30.11.2011. Near Narsingh Mandir, Fateh Chouk, } Badhan Post, Nimath, Dist.Mandsor (M.P.) } {2} } 6 Chandabai Mohanlal Chaurasiya, } age: 46 years, Occ: Household, } R/o C/o Mohanlal Chaurasiya, } Helper, Harankheda Railway Station, } C/o Station Master, Mahu Railway } Station, Dist. Mahu (M.P.) } } 7 Smt. Kausalyabai Chaurasiya, } age: 44 years, Occ: Household, } R/o Bareli (U.P.), } at prsent R/o CTS No.2903, } Lane No.4, Dhule 424 001. } } 8 Ushabai Onkar Chaurasiya, } age: 36 years, Occ: Household, } R/o CTS No.2903, Lane No.4, } Dhule 424 001. Respondents Mr.S.P.Deshmukh, advocate for appellant Mr.K.C.Sant, advocate for respondent no.1 Respondents No.2 to 8 deleted vide Court’s order dated 30.11.2011. CORAM : S.S.SHINDE, J. DATE : 30th November, 2011 ORAL JUDGMENT: 1 Learned Counsel appearing for the appellant seeks leave to delete Respondents No.2 to 8 from the array of Respondents. Leave is granted as prayed for. Amendment to be carried out forthwith. {3} 2 Learned Counsel for the appellant submitted that the trial Court, in para 11, observed that: "It is also not disputed that late Sundrabai firstly bequeathed the property executing will deed in favour of defendant Ushabai, and thereafter said Ushabai sold some portion of the property in question to defendant Peshibai by registered sale deed." Learned Counsel further invited my attention to the grounds stated in the appeal and in particular ground no.7 raised by the Respondent herein before the lower appellate Court. According to the learned Counsel appearing for the appellant, the lower appellate Court should have framed specific point in respect of will deed, as to whether late Sundarbai bequeathed the property in favour of Ushabai. The trial Court has given specific finding about the said will deed and if the lower appellate Court wanted to take a different view, the lower appellate Court should have discussed about the said point. The reasons given by the trial Court are not vitiated and findings are reversed. Therefore, learned Counsel for the appellant submits that this Second Appeal deserves consideration. 3 On the other hand, learned Counsel appearing for Respondent No.1 submits that the appellant herein is a subsequent purchaser. He further submits that even the trial Court has appreciated case of Respondent No.1, however, only directed to refund the amount. The lower appellate Court has {4} rightly considered the issue. Respondent No.1, who has raised Ground No.7 in respect of will deed in the appeal before lower appellate Court, is not aggrieved by non framing of specific point on the issue of will deed and, therefore, it is not open for the appellant to agitate the said point. 4 Upon hearing learned Counsel for the appellant and learned Counsel for Respondent No.1, in my opinion, following substantial questions of law will fall for consideration in this Second Appeal: (1) When the trial Court, in para 12 of the judgment, has categorically observed that it is not in dispute that late Sundarbai firstly bequeathed the property by executing will deed in favour of defendant Ushabai and thereafter said Ushabai sold some portion of the property in question to defendant no.1 Peshibai by a registered sale deed, whether the lower appellate Court failed to frame specific point about the will deed and further failed to refer to the reasons/findings given by the trial Court in para 11 of the judgment? (2) When Ground No.7 was specifically {5} agitated by Respondent No.1 before the lower appellate Court, that the finding recorded by the trial Court in para 11 about the will deed is not admitted position, in that case, whether it was incumbent upon the lower appellate Court to frame specific point in that respect and then render finding referring to the reasons given by the trial Court. (3) Whether the lower appellate Court failed to discuss all the points which were agitated before the trial Court and reasons given by the trial Court in support of its findings. 5 Admit. Learned Counsel for Respondent No.1 waives notice. 6 At this stage, learned Counsel for Respondent No.1 submits that instead of keeping this Second Appeal pending, Respondent No.1 would pray that this Second Appeal may be disposed of by remanding the matter back to the lower appellate Court for fresh hearing. 7 This prayer is not opposed by the learned Counsel for {6} appellant. 8 Therefore, in the aforesaid background, instead of keeping this Second Appeal pending, with the consent of learned Counsel for respective parties, the impugned judgment and order is quashed and set aside. The Regular Civil Appeal is restored to its original file. The lower appellate Court to hear the appeal afresh by giving opportunity of hearing to both the parties. The lower appellate Court to hear the appeal on the evidence which is already on record and dispose of the same as expeditiously as possible, however, within one year from today. It is needless to clarify that the lower appellate Court, while deciding the appeal, shall keep in mind the aforesaid questions of law recorded in this order. 9 With the aforesaid observations, Second Appeal stands disposed of. S.S.SHINDE JUDGE adb/sa79310