RAJNIKANT WALCHAND GANDHI Vs. MOPHAN WALCHAND GANDHI

JUDGEMENT

(1.) Heard Shri Warunjikar for the appellant and Shri deshmukh for the Respondents. The following substantial question of law arises, in the Second Appeal : (i) Whether the First Appellate Court has failed to perform his duty as a final fact finding Court and whether as a result of the failure prejudice has been caused to the appellant the Second Appeal is admitted on the aforesaid substantial question of law. Considering the facts and circumstances of the case the Appeal is forthwith taken up for final disposal.

(2.) The Second Appeal is preferred by the original Plaintiff. The Appellant/plaintiff filed a suit for partition and separate possession claiming 1/ 2th share in the suit properties. The learned trial Judge partly decreed the suit. An Appeal was preferred by the Appellant herein before the District court. The said Appeal has been dismissed by the Appellate Court.

(3.) The case of the Appellant/ Plaintiff is that the Appellant and the original defendant No. 1 are real brothers. The father of the Appellant died on 9th October, 1969 and the mother died on 29th May, 1985. The case made out by the Appellant/plaintiff is that his father was holding properties described in paragraph 1-A and 1-B of the plaint which were his self acquired properties. It is alleged in the plaint that the father was holding certain other moveable properties. The appellant/plaintiff relied upon an alleged Will dated September, 1987 submitted by his deceased father.