1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 180 OF 2009 Dadarao s/o Yeshwant Shinde APPELLANT VERSUS Madhava s/o Pundalik Patil & others RESPONDENTS Shri S.S. Choudhary, Advocate for the appellant. Shri Gaddime, Advocate holding for Shri V.D. Gunale, Advocate for respondent no. 1. ===== CORAM: R.M.BORDE, J. DATE : 30th July, 2009. PER COURT: 1 This is an appeal by original defendant no. 1 raising exception to the concurrent judgments recorded by the courts below. 2 Respondent no. 1 / original plaintiff instituted Regular Civil Suit no. 422/1998 claiming decree of perpetual injunction in respect of an area to the extent of 9 H 52 R situate at village Ambulga-Bk, Tq. Nilanga. Plaintiff claims that the agricultural land is owned and possessed by him and is his ancestral property. There was partition between the brothers interse 2 and in that partition an area to the extent of 2H and 76 R out of gat no. 470 is allotted to plaintiff’s share. Plaintiff’s brother Govind is also allotted an area to the extent of 2 H and 76 R out of gat no. 470 and his other brothers namely Kantrao and Sambhaji are allotted an area to the extent of 2 hectors each out of gat no. 470. It is his contention that since the date of partition plaintiff and his brothers are cultivating their respective shares. Defendants are the adjacent land holders and their agricultural land situate towards northern side of the suit land. Defendants are co- sharers of land survey no. 129. It is contended that defendants are trying to destroy the common bandh situate between both the agricultural lands and trying to encroach upon the land belonging to the plaintiff. Plaintiff as such claimed prohibitory decree against the defendants. Defendants appeared and resisted the suit by filing written statement. According to them, the theory of partition put up by the plaintiff is false. Even if, there is any document of partition, the same is inadmissible in evidence for want of registration. Defendant denied the contention in respect of causing damage to the common bandh as well as the allegation in respect of attempt to encroach upon the land belonging to the plaintiff. 3 Trial court after recording evidence of the parties came to the conclusion that the plaintiff has established his possession over an area to the extent of 2 H and 76 R out of gat no. 470 and has also further established that the defendants are trying to cause damage to the common bandh situate between both the lands. Trial court as such issued an order of injunction restraining the defendants from causing obstruction to the common bandh situate between the lands belonging 3 to plaintiff and defendants. Being aggrieved by the judgment and decree passed by the trial court, defendant no. 1 preferred appeal being Regular Civil Appeal no. 37/2003 before the District Judge. The appeal came to be heard and disposed of by the Additional District Judge, Nilanga who was pleased to dismiss the same by judgment and order dt. 6-8-2004. 4 I have perused the judgments recorded by both the courts below. Plaintiff has lead ocular evidence in respect of his possession over an area to the extent of 2 H and 76 R. Defendant has failed to lead any evidence nor there is any challenge to the assertion made by plaintiff in respect of his possession over an area to the extent of 2 H and 76 R. The courts below have also found that the apprehension in respect of likelihood of damage being caused by defendant to the common bandh situate between both the lands is real and as such clamped prohibitory order against the defendants. On perusal of the judgments delivered by both the courts below, it appears that the courts below have appreciated the documentary as well as ocular evidence placed on record in its proper perspective. It has been pointed out by learned counsel for the appellant that during the continuance of the suit, defendant no. 2 has died and his legal heirs are not brought on record and, therefore, it was not appropriate for the courts below to pass decree against him. Decree would bind the person in his personal capacity. Death of the concerned defendant will have no impact so far as decree passed by trial court is concerned. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 4 5 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( R.M.BORDE, J.) ******* dyb/office/sa180.09.odt