1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH SECOND APPEAL NO. 459 OF 1998 Maroti s/o. Govinda Chavan, died through L. Rs. A) Harishchandra s/o. Maroti Chavan, age 65 years, B) Ramchandra s/o. Maroti Chavan, age 43 years, C) Kondabai w/o. Maroti Chavan, age 80 years, L.R.s 1 to 3 r/o Turkabad, tq. Gangapur, dist. Aurangabad. D) Indubai Chaimajdi Mhaske, age 63 years, r/o. as above. E) Basantabai Laxman Gavli, age 58 years, r/o. Shivur, Vaijapur. F) Sunderabai Namdev Karangale, age 46 years, r/o. Uran, District Raigad. - - - Respondents [ Orig. plaintiff ] versus 1. Patilba s/o. Januji Patil, died through L.R.s 1/A Zelabai w/o Patilba Patil [ dismissed as per Court's order dated 31-3-2006] 1/B Jaibai d/o. Shripat Bharad, [ dismissed as per Court's 2 Order dt. 31-3-2006]. 1/C Vasant s/o. Patilba Patil, age 50 years, 1/D Trimbak s/o. Patilba Patil, age 45 years, 1/E Ashok s/o. Patilba Patil age 30 years, 1/F Balchand s/o. Patilba Patil, age 35 years, All residents of Turkabad, taluka Gangapur, dist. Aurangabad. 2. Murlidhar s/o. Ramrao Patekar, age 32 years, occ. and r/o. as above. 3. Trimbak s/o. Ramrao Patekar, died through his L.R.s 3(i) Badrinath s/o. Trimbak Patekar, age major, occu. agriculture, R/o. Turkabad, taluka Gangapur, district Aurangabad. 3(ii) Ramhari s/o. Trimbak Patekar, age major, occ. agriculture, r/o. as above. - - - - Respondents [ Orig. defendants ] Shri S. P. Deshmukh, Advocate for the appellants. Shri M. N. Navandar, Advcate for respondents 1c, 1d, 1e and 1f. CORAM: N. D. DESHPANDE, J. Dated : 10th December 2009 3 PER COURT: 1. Heard Shri Sunil Deshmukh, learned Counsel for the appellants, the legal heirs of the original plaintiff Maroti Govinda Chavan who was doing pottery business in village Turkabad, taluka Gangapur, district Aurangabad. The original plaintiff filed suit against the defendants in the year 1975 for declaration and injunction in respect of suit land for his business of pottery which is in his possession bounded by : East : Public road and house of Ashruba Patil, West:: Public road, houses belonging to the plaintiff South: House of Bajirao Shripati Patekar, North : The house and open land belonging to plaintiff. 2. This second appeal is directed against the impugned judgment and order passed by the trial Court in Regular Civil Suit No. 70 of 1975 dated 26-4-1984 and the judgment and order dated 11-6-1997 in Regular Civil Appeal No.34 of 1985 passed by the 1st appellate Court. The concurrent findings have been recorded against the plaintiff. Shri Navandar, learned Counsel for the respondent Nos.1-c to 1f who are legal heirs of defendants Nos.2 and 3 submits that the property described is admittedly the property 4 belonging to the Government which is claimed by the appellant's father original plaintiff on the basis of Kabala (Exhibit 47) (the reference is found mentioned in the impugned judgment. However, the document is not available on record today for perusal.) Shri Deshmukh, learned Counsel for the appellant pointed out that on 4-2-1975 defendant no.1 along with other two defendants were trying to interfere in the peaceful possession of the suit plot and plaintiff's claim to the same some time on or about 4-2-1975 and, therefore, he was constrained to file this second appeal joining other two defendants for declaration and injunction. His earlier suit came to be dismissed since withdrawn in the year 1971 and it was filed against defendant no.1 Patilba. Perused the plaint. The allegations are levelled against the original defendant no.1 who is no more. He was police patil in the village and got certain entries of Gram Panchayat effected in his name. He was cousin brother of then Sarpanch Dhondiba and, therefore, had an eye on the suit plot which plaintiff was holding on the basis of Kabala. 3. It is found that no area of the suit plot has been described in the plaint. Boundaries are shown but they do not refer to the occupation of the defendants on any of the sites. The plaint also refers to certain proceedings before the Tahsildar, Gangapur where decision of Tahsildar and Collector did not respond to his 5 declaration and his prayer for granting land on kabala. In the said proceeding before the Tahsildar and the Collector, he was trying to get it on kabala afresh in continuation of his earlier kabala and possession of 50 years standing and being used for their family business of pottery from their forefathers. It was also stated that plaintiff was interested in purchasing of the land in his possession but due to short of funds, plaintiffs requested to give land on kabala to the extent of 60' and 40' (referring to plaint para 6). Therefore, he filed a suit in the year 1971 which was withdrawn. However, he was precluded from filing the fresh suit on the same cause of action. Thereafter, he filed present suit being Regular Civil Suit No. 70 of 1975 on the basis of cause of action on 4--2-1975. They tried to interfere in peaceful possession of the suit plot. Cause of action is vaguely stated. It appears that original plaintiff was in the habit of filing suits after suits in respect of Government land. 4. Both the Courts below referred to evidence of both the parties and after hearing them in the trial and in appeal dismissed the plaintiff's suit. There is no question of re-appreciation of the evidence when it is not permitted in second appeal. Moreover, it is observed that identity of the suit plot is not established as per the alleged kabala on record. 6 5. During the course of arguments, Shri Navandar, learned Counsel for the respondents Nos.1c to 1e, submitted that the land which the original plaintiff was claiming before the Tahsildar and the Collector was held to be private property of the defendant No.1 Patilba and, therefore, the request of the present plaintiff for kabala was rejected. However, the present respondents have no concern with the present possession held by the plaintiff and the respondents are justified in retaining their claim and possession in respect of their property. 6. Thus, it is seen that both the Courts below have considered merits of both the sides and rightly dismissed the plaintiff's suit. There is no substantial question of law and the second appeal deserves to be dismissed summarily at the stage of admission after hearing both the sides. It is accordingly disposed of as dismissed. ( N.D.DESHPANDE, J. ) pnk/sa45998