1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 143/2008 (Bhalerao Domaji Umate VERSUS Bhaurao Dadaji Rohate) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri S.A. Gordey, counsel for the appellant. Shri Padhye, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JUNE 26, 2008. Heard the learned counsel for the parties. The appellant is the original defendant. A suit was filed by the plaintiff for a declaration and permanent injunction. According to the plaintiff, he was the owner of the suit property admeasuring 1500 Sq. ft. out of total plot area of 4500 Sq.ft. situated in Nagpur. It was pleaded by the plaintiff that he was the son-in-law of one Vatsalabai @ Manjulabai Vitthalrao Jate. It was further pleaded that Vatsalabai and one Vasant Mule had jointly acquired plot No.3 comprising an area of 4500 Sq. ft. The plaintiff was occupying two rooms on the open plot admeasuring 1500 Sq. ft. since 1974 along with Vatsalabai. According to the plaintiff, though the defendant claimed to have purchased the suit property from Vasantrao, Vasantrao had no right 2 and title to dispose of the suit property admeasuring 1500 Sq. Ft. as he was not the owner thereof. On the aforesaid pleadings, the plaintiff sought the relief of declaration of his ownership and also for permanent injunction restraining the defendant from dispossessing the plaintiff from the suit property. The defendant denied the claim of the plaintiff and pleaded that the defendant acquired the suit property in pursuance of a will executed by one Smt. Jankubai, who had purchased the suit property from Vasantrao for a valuable consideration. The relationship of the plaintiff with Vatsalabai was denied by the defendant. The defendant, therefore, sought for the dismissal of the suit. The trial Court, after appreciating the evidence tendered by the parties on record, came to a conclusion that the plaintiff succeeded in proving that Vatsalabai and Vasantrao had jointly acquired plot no.3 situated at Manewada. The Court, however, held that the defendant had not proved that he was the sole surviving legal heir of Vatsalabai, and therefore, was not the owner of the suit property admeasuring 1500 sq. ft. In an appeal filed by the plaintiff against the judgment passed by the trial Court, 3 the first appellate Court reversed the finding recorded by the trial Court on the relationship of the plaintiff with Vatasalabai to hold that the plaintiff had succeeded in proving that he was the sole surviving legal heir of Vatsalabai. Consequently, the Court held that the plaintiff had further succeeded in proving that he became the owner of the property by succession. The appeal was allowed and the suit of the plaintiff was, therefore, decreed. It is submitted on behalf of the appellant by the learned counsel that the first appellate Court was not justified in reversing the finding recorded by the trial Court on the issue as to whether the plaintiff was the legal heir of deceased Vatsalabai. According to the counsel for the appellant, there was nothing on record to show that the plaintiff was the legal heir of Vatsalabai and was entitled to succeed to the property except the bare word of the plaintiff in his examination-in-chief that Vatsalabai was the mother-in-law of the plaintiff. It is submitted on behalf of the appellant that the finding recorded by the first appellate Court on this issue is perverse and is not supported by sufficient evidence. 4 Per contra, it is submitted on behalf of the respondent that the plaintiff had pleaded and also clearly stated in his evidence that he was the only legal heir of deceased Vatsalabai and Vatsalabai was his mother-in-law. According to the counsel for the respondent, the relationship of Vatsalabai with the plaintiff was not challenged by any family member or relative but, was being challenged by a person, who claimed to have acquired the ownership in pursuance of a will executed by one Jankubai, who, in turn, purchased the property from Vasantrao. The counsel for the respondent sought for the dismissal of the second appeal. With the assistance of the learned counsel for the parties, I have perused the plaint, the written statement as also the evidence tendered by the plaintiff. It is conspicuous to note that the plaintiff tendered oral evidence by entering into the witness box and the defendants did not lead any evidence whatsoever. The plaintiff had clearly stated in the plaint that the suit property was owned by Vatsalabai and the plaintiff was the only legal heir of Vatsalabai as Vatsalabai was his mother-in-law. Though the defendant had denied the relationship, the defendant did not enter the witness box. The 5 plaintiff entered the witness box to depose that he was living with Vatsalabai and Vatsalabai was his mother-in-law. It is further deposed by the plaintiff in his evidence that the plaintiff was the sole legal heir of Vatsalabai. It is pertinent to note that the defendant has not cross-examined the plaintiff, as a result of which, the evidence of the plaintiff in his examination-in-chief remained uncontroverted. The first appellate Court, therefore, found on the basis of the oral evidence on record that the plaintiff was the legal heir of Vatsalabai and had inherited the suit property from her. In such situation, it cannot be said that the finding recorded by the first appellate Court is perverse. It is for the Court to decide the sufficiency of evidence in proof of particular fact. In the instant case, the first appellate Court held and rightly so, that the plaintiff had succeeded in proving the relevant fact about his relationship with Vatsalabai on the basis of the evidence tendered by him on record. Since both the Courts have concurrently held that Vasantrao and Vatsalabai were joint owners of the suit property, the claim of the plaintiff was rightly decreed by the first appellate Court. The findings recorded by the first appellate Court are pure findings of fact based on 6 an appreciation of the material evidence on record. The findings cannot be said to be unreasonable, much less perverse. For the reasons aforesaid, the second appeal is dismissed with no order as to costs. JUDGE APTE