1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 649/2005 (Smt.Rajjuriya Rajjubai Hattu Chauhan VERSUS Chhotelal Mangal Korku Jambhekar & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri V.M. Deshpande, counsel for the appellant. Shri S.S. Deshpande, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 21, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff. A suit was filed by the plaintiff for possession of the suit property. It was the case of the plaintiff that the suit property was owned by his father late Hattu as the same was allotted to him by the Tahsildar. Hattu had made a bequest of the plot in favour of the plaintiff by a will dated 29.06.1985. According to the plaintiff, after the death of Hattu, the plaintiff became the absolute owner of the suit property. Since, the defendants encroached upon the suit property, the suit was filed for the reliefs of possession and permanent injunction against the defendants. The defendants resisted the claim of the plaintiff and denied the ownership of the 2 plaintiff over the suit property. They also denied that the plaintiff became the owner of the same in view of the will dated 29.06.1985. According to them, they were in possession of the suit property since long and the suit was barred by limitation and also bad for non-joinder of necessary parties. The trial Court, on an appreciation of the evidence on record, held that the plaintiff had succeeded in proving that he was the exclusive owner of the suit property and the defendants have encroached upon the same. The Court further held that the plaintiff was entitled to a decree of possession though he was not entitled to grant of decree of permanent injunction. In an appeal filed by the defendants, the first appellate Court reversed the findings recorded by the trial Court to hold that the plaintiff had not succeeded in proving his ownership over the suit plot. The first appellate Court, after reappreciating the evidence, came to a conclusion that the plaintiff did not prove that the suit plot was in his father's possession till his death and the defendants had encroached upon the same. The first appellate Court held that the trial Court was not justified in applying the provisions of Section 90 of the Evidence Act for drawing a presumption 3 in respect of the documents at Exh.Nos.48 and 49 which were in the form of a grant of a plot and the possession receipt thereof. The first appellate Court held that the aforesaid documents were the certified copies and the presumption under Section 90 of the Evidence Act was not available when the certified copies were produced before the Court without seeking the permission of the Court to adduce secondary evidence. Thus, for the aforesaid reason and also for the other reasons recorded in the judgment dated 11.07.2005, the first appellate Court held that the plaintiff was not entitled to any relief as claimed by him. The findings recorded by the first appellate Court are pure findings of facts and are based on a proper appreciation of the material evidence and the legal provisions applicable in that regard. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE