Appasaheb Shivshankar Tamshetti ... vs Vijaykumar Shivshankar ...
2021 Latest Caselaw 10420 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                932 SECOND APPEAL (STAMP) NO.22038 OF 2016


           APPASAHEB SHIVSHANKAR TAMSHETTI AND ANOTHER
                                       VERSUS
                      VIJAYKUMAR SHIVSHANKAR TAMSHETTI
                                          ...
                      Mr. P.K. Deshmukh, Advocate for appellants
                                          ...

                                    CORAM :     SMT. VIBHA KANKANWADI, J.

                                    DATE :      05th AUGUST, 2021.


PER COURT :



1              Heard learned Advocate for the appellants, who are the original

defendants, who want to file Second Appeal challenging the concurrent

findings. Respondent is the original plaintiff, who had filed suit for perpetual

injunction i.e. Regular Civil Suit No.123/2002. Learned Civil Judge Junior

Division, Tuljapur, Dist. Osmanabad decreed the suit on 24.10.2007, by

holding that plaintiff is the owner and possessor of the suit property and the

defendants are obstructing his possession. The defendants filed Regular Civil

Appeal No.140/2009 to challenge the said Judgment and Decree passed by

the learned Trial Court. Learned Principal District Judge, Osmanabad

dismissed the appeal on 09.12.2014, thereby confirming the decree, that was

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passed by the learned Trial Court.

2 In view of the decision in Ashok Rangnath Nagar vs. Shrikant

Govindrao Sangvikar, (2015) 16 SCC 763, it is not even necessary to issue

notice to the respondent, unless the appellants show that there are

substantial questions of law.

3 Heard learned Advocate for the appellants, who has made

submissions considering the contents of the appeal memo and tried to submit

that both the Courts below have not considered that plaintiff had in fact

failed to prove Will in his favour by deceased Ratnabai. Will was executed on

18.12.2000 and Ratnabai died on 24.04.2002. Defendant No.1 as well as

plaintiff are the real brothers and Ratnabai was their grandmother. Ratnabai

had two daughters viz. Vimalbai and Kamalbai. Plaintiff and defendant No.1

are the sons of Vimalbai. There is no reason for Ratnabai to exclude

defendant No.1. In fact, plaintiff, defendants and Ratnabai performing a

Joint Hindu Family. Therefore, they had equal share in the suit property. Yet,

both the Courts below on the basis of said Will, held that plaintiff is the

owner, and therefore, it is a wrong decision, which needs to be set aside in

the Second Appeal. The Second Appeal raises substantial question of law.

4              It is to be noted that Ratnabai was the owner of the property and





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it is accepted by the parties i.e. plaintiff as well as defendants that she had

received the property from her father. Therefore, it was her own separate

property. Further, it has also come on record that Ratnabai had partitioned

land Block No.195, which was admeasuring 12 Acres 05 Gunthas and it was

given to both the daughters equally. However, land admeasuring 05 H 95 R

was retained by her, which was bearing Block No.193 for her own benefit.

Suit property is the said Block number as well as Municipal House No.1022

and 182. According to the plaintiff, Ratnabai executed Will in his favour on

18.12.2000. When this fact was challenged, plaintiff has examined attesting

witness Siddhappa Shetgar (Exh.46). Through the said attesting witness the

Will has been proved and it has been so held by both the Courts below.

Another fact to be noted is that though Will is not a compulsory registrable

document; yet, Ratnabai had gone to the Sub Registrar's office and registered

the said document. The Will is at Exh.47. After the death of Ratnabai on

24.04.2002, the plaintiff has got his name mutated by Mutation Entry

No.2568 to the bequeathed property. Inspite of the suit filed on 04.07.2002,

there was no other action taken by the defendants to challenge the Will.

When the Will is proved and no such circumstances, which are creating any

doubt over the said Will, have been proved by the defendants, then both the

Courts below have correctly appreciated the evidence as well as the legal

point has been correctly dealt with, by holding plaintiff as the owner of the

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suit properties, on the basis of Will (Exh.47). After perusal of the impugned

Judgments, the appellants have failed to point out any substantial question of

law. When both the Courts below have concurrently given findings and those

findings have been arrived at by sound appreciation of evidence as well as on

the basis of sound principles of law, it is not necessary that such findings

should be interfered with. At the costs of repetition, when the appellants

have failed to point out substantial questions of law, as contemplated under

Section 100 of the Code of Civil Procedure, 1908, the Second Appeal

deserves to be dismissed, at the threshold. Accordingly, it is dismissed.

( Smt. Vibha Kankanwadi, J. )

agd