1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 341 OF 2010 Dattatraya Bajirao Dhakne Died by L. R.s' 1. Namdeo Dattatraya Dhakne and others .. Appellants Versus Gangabai W/o Dattatraya Dhakne and others .. Respondents Shri Vivek Bhavthankar, Advocate for Respondent Appellants. Shri H. K. Mundhe, Advocate for the Respondent No. 1. CORAM : S. V. GANGAPURWALA, J. DATE : 30TH NOVEMBER, 2010. PER COURT : . This is an appeal by the original plaintiff who had filed the suit for negative declaration and for perpetual injunction. The Trial Court dismissed the suit. The plaintiff preferred an appeal. The Appellate Court also dismissed the appeal. The plaintiff has assailed the said judgment in the present second appeal. 2 2. Shri Bhavthankar, learned counsel appearing on behalf of appellant submitted that the appellant and the respondent No. 1 are husband and wife having one son and three daughters and they are members of joint family and the suit property is joint family property. The plaintiff had purchased the suit property from its original owner in his name. Thereafter, as the plaintiff was in need of money the same was mortgaged for Rs. 4,000/-. But inspite of executing mortgage deed the sale deed was executed. The plaintiff has repaid the loan and released the suit property. But at that time the sale deed got executed in the name of respondent No. 1. According to Shri Bhavthankar, learned counsel there is nothing on record to show that present respondent No. 1 had any source of income. There is also nothing on record to show that she had received the stridhan and from the said income she has purchased the suit property. As the respondent No. 1 was wife of appellant the same was purchased in the name of respondent No. 1. Learned counsel further submitted that even the Trial Court has accepted the ownership of the plaintiff, but only on technical ground the relief of declaration and injunction was refused by the Trial Court. The learned counsel further contended that the Appellate Court has perversely appreciated the evidence regarding stridhan. 3 According to him, the Courts have committed an error in dismissing the suit of the plaintiff. 3. With the assistance of learned counsels for the respective parties I have gone through the judgments. It is a fact that the sale deed dated 02nd April, 1991 is executed by Sheshabai in favour of present respondent No. 1. Not only that even earlier an application was submitted to the revenue authorities stating that the land is owned and possessed by the respondent No. 1. The lower Appellate Court has evaluated the oral and the documentary evidence and has come to the conclusion that the defendant Gangubai has succeeded in rebutting the claim of the plaintiff and has proved that she is the absolute owner and possessor of the suit property. Even the overt acts on the part of the plaintiff has been considered by the Courts below. So also the mutation entry No. 396. 4. Shri Mundhe, learned counsel for the respondent No. 1 has placed on record the affidavit of respondent No. 1, where she admits that the plaintiff/appellant is the owner of the suit land. The said affidavit is contrary to the oral evidence and the statement on oath made by the respondent No. 1. After having 4 sold the property to respondent Nos. 2 and 3, the respondent No. 1 has filed the said affidavit only for the benefit of the appellant who is her husband. 5. The view taken by the Courts below is a possible view. In the light of the same the second appeal does not involve any substantial question of law and the same is dismissed. However with no order as to costs. [S. V. GANGAPURWALA, J.] bsb/Nov. 10