sa497.09.odt 1/4 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO. 497 OF 2009 Tulshiram s/o Laxman Kukudkar, aged about 50 yrs., Occp. Cultivation, R/o Lanzeda, Tah. & Distt. Gadchiroli. :: APPELLANT -: VERSUS :- Mankubai Bhivaji Kukudkar – Dead through Legal representatives; 1. Tarabai w/o Balaji Bhandekar, aged about 50 yrs., Occp. Household, R/o Gadchiroli, Tah. & Distt. Gadchiroli. 2. Watsalabai w/o Pandurang Bhandekar aged about 50 yrs., Occp. Household, R/o Lanzeda, Tah. & Distt. Gadchiroli. 3. Kamalabai w/o Narayan Bodalkar aged about 45 yrs., Occp. Household R/o Bhadravati, Tah. Bhadravati, District – Chandrapur. 4. Vimalbai w/o Prabhakar Naitam, aged about 40 yrs., Occp. Household, r/o Wadsa, Tah. Wadsa, Distt.- Gadchiroli. :: RESPONDENTS ------------------------------------------------------------------------------------------------------------- CORAM : F. M. REIS, J. DATED : 14TH JAN., 2010 P. C. : 1. Heard Mr. Abhay Sambre, learned Counsel for the appellant. 2. This is a second appeal filed by the appellant challenging judgment sa497.09.odt 2/4 and decree dated 04/8/2009 passed by the learned District Judge, Gadchiroli in Regular Civil Appeal No. 24 of 2008, whereby the appeal preferred by the appellant against judgment and decree dated 11/02/2008 passed in Regular Civil Suit No. 26 of 1996 passed by the learned Civil Judge, Junior Division, Gadchiroli, came to be dismissed. The learned Counsel for the appellant submitted that there was ample evidence on record to the effect that the Will dated 05/10/1978 was duly proved. The learned Counsel went through the impugned judgment of the appellate Court and pointed out that the appellant had examined one Sambhaji Somankar, who according to him was present when the Will was executed and considering the fact that the attesting witnesses had already expired, the appellant had duly proved the Will based on which the appellant is claiming right over the suit property. 3. On perusal of the record, I find that the learned trial Judge, while deciding issue No.1 has held that said Sambhaji Somankar, P. W.-2 had in his cross examination admitted that execution of the Will was not done before him and that he had deposed before the Court on the say of the appellant. The learned Judge further held that the said witness has nothing to do with the execution of the Will and he has merely a brought-up witness, who had even not identified the signature of attesting witnesses on the Will. The learned Judge further held that even the fact that attesting witnesses had expired was not established by the appellant. 4. The learned District Judge, in the appeal preferred by the appellant, sa497.09.odt 3/4 on appreciating the evidence on record, came to the conclusion that it cannot be said that the appellant succeeded in establishing due execution of the Will on which basis he claimed to be the owner of the suit land. The learned District Judge further came to the conclusion that the Will was not proved by the appellant and as such the appellant cannot be said that he became the owner and in possession of the suit land. 5. The learned trial Judge also on appreciating the evidence on record and relying upon the 7/12 extract which was at Exh.106, came to the conclusion that the appellant had also failed to establish his possession on the suit property. The learned appellate Court also came to the conclusion that the appellant had failed to establish the possession of the suit land. 6. From the foregoing findings of two Courts below, it is apparent that there are concurrent findings of fact to the effect that the Will has not been proved by the appellant. Apart from that, the appellant has also failed to establish his possession over the suit property. These concurrent findings of fact cannot be interfered with in the second appeal. The learned Counsel appearing for the appellant failed to show that any evidence has not been considered by the two Courts below while coming to the conclusion that the Will has not been proved or that the appellant was not in possession of any portion of the suit land. The Courts below found that PW-2 was not present when the execution of the Will was done and the Will was not proved as neither the attesting witnesses nor the Scribe of the Will were examined. The finding on possession is basically a question of fact which cannot be sa497.09.odt 4/4 interfered in a second appeal. In the present case the trial Court found that in the 7/12 extract, the possession column is blank and that the appellant miserably failed to establish the possession over the suit property. 7. In the case of Kashibai w/o Lachiram & another Vs. Parwatibai w/o Lachiram & others reported at (1995) 6 S. C. C.-213, the Apex Court has held that there could be no valid execution of a document which under the law is required to be attested without the proof of its due attestation and if due attestation is also not proved, the fact of execution is of no avail. The Apex Court has further held therein that the High Court cannot reappreciate the evidence and interfere with the concurrent findings of fact of Courts below and the High Court has no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact on the basis of appreciation of relevant evidence. 8. In the present case, on perusal of the impugned judgment, I find that the Courts below have appreciated the evidence in accordance with law and there is no infirmity pointed out by the learned Counsel for the appellant which call for interference in a second appeal. The grievance of the appellant can at the most be matters of appreciation of evidence, which cannot be done in the second appeal. There is no substantial question of law which arise in the present appeal and as such the second appeal is summarily dismissed. JUDGE wwl