1 sa558-10.sxw KBP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.558 OF 2010 WITH CIVIL APPLICATION NO.1445 OF 2010 Dattu Sakharam Jadhav ..Appellant Vs Baban Sakharam Jadhav since deceased, through his Lrs. 1a) Smt.Parubai Baban Jadhav and ors. ..Respondents ­­ Mr.M.N.Dhamal, for appellant. Mr.Vishwanath Talkute, for respondent nos.1A to 1F. ­­ CORAM : R.G.KETKAR, J. DATE : 3 rd MAY, 2011 P.C: Head Mr.M.N.Dhamal, learned counsel for appellant and Mr.Vishwanath Talkute, learned counsel for respondent nos.1A to 1F. 2] This Second Appeal is preferred by original defendant no.1 challenging the judgment and order dated 2 nd August, 2010 passed by the learned District Judge­3, Satara in Regular Civil Appeal No.351 of 2002. By that judgment, learned District Judge allowed the Appeal preferred by respondent nos.1A to 1F/original plaintiffs and set aside judgment and decree dated 15 th November, 2002 passed by learned Civil Judge Senior Division, Khandala in Regular Civil Suit No.90 of 2 sa558-10.sxw KBP 1990. Learned District Judge decreed the suit instituted by respondent nos.1A to 1F and restrained defendant no.1 from causing obstruction to the possession of the plaintiffs over the suit property. The parties shall hereinafter be referred as per their status in the trial Court. 3] The plaintiff nos.1A to 1F are the heirs and legal representatives of Baban Sakharam Jadhav – original plaintiff. Said Baban instituted suit against the defendant no.1 contending inter alia that the land bearing gat no.136 to the extent of 5 hector 21 R out of 9 H 37 Ares situate at village Kesurdi, Taluka Khandala (for short “suit lands”) purchased by registered sale deeds dated 25 th January, 1979 (exhibit 83) and 25 th February, 1981 (exhibit 82). He is in possession of these lands. Since defendant no.1 obstructed possession of the plaintiffs over the suit land, plaintiffs instituted suit against defendant no.1. Defendant no.1 resisted the suit and denied that the said lands were purchased from the income of plaintiffs. Defendant no.1 claimed that he is looking after the ancestral properties of himself and plaintiff and the suit land is purchased from the income of joint family. Thus, it is the case of defendant no.1 that he is co­sharer of the suit land. 4] In support of their case, the parties led oral as well as documentary evidence on record. On the basis of material on record, 3 sa558-10.sxw KBP the learned trial Judge dismissed the suit. Being aggrieved by this judgment, the plaintiffs preferred Regular Civil Appeal No.351 of 2002 which was allowed. It is against this judgment and decree passed by the learned District Judge, the defendant no.1 has preferred this appeal. 5] Mr.Dhamale, learned counsel for appellant defendant no.1 submitted that the suit lands are not self acquired properties of original plaintiff Baban. Defendant no.1 is co­sharer in these lands as they are purchased out of income of the joint family. He further submitted that it was defendant no.1 who was cultivating these lands as plaintiff was employed in Mumbai. He, therefore, submitted that defendant no.1 is in possession of these lands and injunction against defendant no.1 ought not be issued. Apart from that, he relied upon document dated 31 st August, 1994 which was produced in the Lower Court at exhibit 63 to contend that, at any rate, under the family arrangement the suit lands are allotted to the plaintiff by defendant no. 1. He further submitted that defendant no.1 has also instituted Regular Civil Suit No.141 of 1991 for partition of properties. 6] On the other hand, Mr.Vishwanath Talkute supported the impugned judgment and order. He submitted that original plaintiff Baban was working in a Mill in Mumbai upto 1985. The suit lands are purchased from the income of plaintiff. The extent of ancestral 4 sa558-10.sxw KBP property is only 29 R. Having regard to the admissions of defendant no.1, it cannot be said that the suit lands were purchased from the income of joint family. In so far as the document exhibit 63 dated 31 st August, 1994 is concerned, he submitted that the plaintiff has not signed this document. 7] I have considered rival submissions given by learned counsel for the parties. It is not in dispute that the original plaintiff Baban was working in Srinivas Cotton Mills Ltd., Mumbai till 1985. Sale deed dated 25 th January, 1979 (exhibit 83) as also sale deed dated 25 th February, 1981 (exhibit 82) stand in his name. In so far as contention raised by defendant no.1 that these lands were purchased out of the income of joint family is concerned, in paragraph 13, the learned District Judge considered the extent of ancestral agricultural lands is 29 R. He also recorded the admissions given by defendant no.1 in cross­examination that there was no sufficient income from the ancestral lands to maintain the family members of the plaintiff and defendant no.1. In view thereof, it is not possible to accept the contentions raised by defendant no.1 that suit lands were purchased from the income of joint family. 8] In so far as the possession of the suit lands is concerned, in paragraph 23, the learned District Judge has considered the aspect of possession and came to the conclusion that the plaintiff is in 5 sa558-10.sxw KBP possession of the suit lands. In so far as the document dated 31 st August, 1994 exhibit 63 is concerned, the learned District Judge observed that the plaintiff has denied execution of the said document. The defendant no.1, however, has not examined any witness to prove the contents of the said document. I, therefore, do not find that learned District Judge has committed any error in decreeing the suit filed by the plaintiff. No substantial question of law arises. Hence, Second Appeal is dismissed. In view of dismissal of Second Appeal, Civil Application No.1445 of 2011 does not survive and the same also stands dismissed. [R.G.KETKAR, J.]