7. Aggrieved, the appellant preferred second appeal before the High Court which has been dismissed vide the impugned judgment and decree. Hence, this appeal. 8. Sri R.P. Bhatt. Learned Senior Counsel duly assisted by Ms. Madhurima Tatia. Advocate has submitted that there was no documentary evidence or trustworthy oral evidence that the suit property had been given to the forefathers of Respondent No. 1 -plaintiff by the Maratha Government in the year 1800. Same remained the factual aspect in respect of the alleged partition among his forefathers in the year 1819. The first appellate Court had no occasion to decide the application under Order 41 Rule 27 CPC prior to the hearing of the appeal itself. More so, as there has been no reference to the will in the plaint or first appeal, thus, it could not be taken on record for want of pleadings in this respect. Further, taking the will on record for want of pleadings in this respect. Further, taking the will on record did not mean that either the will or its contents stood proved. None had proved the said will and thus, could not be relied upon. If the will is ignored, there is no evidence on record to prove the case of Respondent 1 -plaintiff.”
