SA.408-90 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 408 OF 1990 1. Kalba Manaji Chature (Since deceased, ) represented through Legal Heirs) ) 1) Ganpat Kalba Chature (Since deceased, ) represented through Legal Heirs) ) 1a) Smt. Gajarabai Ganpat Chature, ) 1b) Indrajeet Ganpat Chature, ) 1c) Milind Ganpat Chature, ) All resident of Sonawadi, Taluka Phaltan, ) District Satara. ) 1d) Smt. Aruna Vasant Chavan, Resident of Kolki, Taluka Phaltan, ) District Satara ) 2. Maruti Kalba Chature, Age 46, ) 3. Uttam Kalba Chature, Age 44, ) 4. Keshav Kalba Chature, Age 41, ) 5. Smt. Parvatibai Kalba Chature, Age 80, ) All residents of Sonawadi (BK), Taluka- ) Taluka Phaltan, District Satara. ) 6. Sou. Vithabai Bajirao Gunawate, Age 52, ) 7. Sou. Kamal Gangaram Kashid, Age 50, ) residing at Mirapwadi, Taluka Phaltan, ) District Satara. ) 8. Sou. Bebi @ Suvarna Shivajirao Mane, ) SA.408-90 - 2 - Age 39, resident of Sonawadi (BK), ) Taluka Phaltan, District Satara. ) ...Appellants Vs. 1. Bajirao Ravsaheb Mule (since deceased, ) by his legal heirs) ) 1A. Mr. Nana Bajirao Mule, ) 1B. Mr. Hanumant Bajirao Mule, ) 1C. Smt. Sumal Vithal Suryawanshi, ) All resident of Sonawadi (BK), Taluka - ) Phaltan, District – Satara ) 1D. Smt. Dwarka Uttam Sawant, ) Resident of Kodoli, Taluka and District - ) Satara. ) 1E. Smt. Jayshree Tulshidas Jadhav, ) Age-Adult, Resident of Bhalwadi, Taluka - ) Man, District – Satara ) 1F. Smt. Kusum Hanumant Kadam, ) Resident of Ihirpwadi, Post Sonwadi, Tal.- ) Phaltan, District Satara ) 2. Khasherao Rausaheb Mule (Since deceased,) represented by his legal heirs) ) 2A. Balu Khasherao Mane, ) 2B. Vasant Khasherao Mane, ) 2C. Prakash Khasherao Mane, ) All residing at Sonwadi (BK), Taluka - ) Phaltan, District Satara ) 2D. Vilas Khasherao Mane, ) C/o. Raviraj Chavan, At & Post Vardhangad ) Taluka Khatav, District Satara. ) SA.408-90 - 3 - 2E. Sou. Chaturabai Dattatraya Suryawanshi, ) At & Post Sonwadi (BK), Tal. Phaltan, ) District Satara. ) 2F. Sou. Sanjivani Vasant Ingawale, ) At & Post Kedgaon Nele, Taluka and ) District – Satara. ) 2G. Sou. Pushpa Prakash More, ) At & Post Vardhangad (Chavan Wadi), ) Taluka Khatav, District Satara. ) 3. Methaji Bacharam Mule, Age 39, ) 4. Nana Bajirao Mule, Age 44, ) 5. Balu Khasherao Mule, Age 39, ) All Agriculturists of Sonawadi (BK), ) Taluka Phaltan, District – Satara. )...Respondents *** Mr. V. B. Rajure and A. S. Chaudarkar, for the Appellants. *** CORAM: V. M. KANADE J. DATE : FEBRUARY 3, 2011 ORAL JUDGMENT 1. Heard the learned counsel appearing on behalf of the appellants. The appellant is the original plaintiff. (The parties are hereinafter referred to as the plaintiffs & defendants, for the sake of convenience). The plaintiff has filed Regular Civil Suit No. 87 of 1985 SA.408-90 - 4 - for permanent injunction, restraining the defendants from obstructing the construction of the well and also its repairs, which was situated on the boundary of the land, owned by the plaintiff. The trial Court decreed the suit. The Appellate Court, however, allowed the appeal, filed by the defendants/respondents herein and dismissed the suit. The appeal was admitted on the following substantial questions of law- ●The substantial question of law involved in this Appeal is as to the ownership of the disputed well situated on the Sarbandh of Revision Survey No. 46/3 and Revision Survey No. 47/7. ●Further question of law involved in this appeal is whether the documentary evidence on record prove that the defendants have title over the suit well. ●It ought to have been considered that in view of the report and the evidence of Shivaji Kokane, the Cadestral Surveyor, appointed as Court Commissioner it is clear that the suit well is situated on the Sarbandh of the lands and, therefore, the defendants cannot claim exclusive title over the suit well. ●It is an error to hold that the plaintiffs have failed to establish their joint title and enjoyment of the Well along with the plaintiffs. . The learned counsel appearing on behalf of the appellants has taken me to the judgment and order of the lower Appellate Court and submit that the lower Appellate Court though having held that the well was situated on the part of the plaintiff's land, has erred in not granting an order of injunction in favour of the plaintiff. SA.408-90 - 5 - 2. I have perused the order passed by the Appellate Court. The Appellate Court after appreciating the evidence on record came to the conclusion that the defendants also had spent some amount in construction of the said well, after taking Tagai loan from the Tahsildar. The Appellate Court has taken into consideration the statement of the witnesses and other documentary evidence on record and did not accept the contention of the original plaintiff. It is a well settled position in law that the First Appellate Court has every right to re-appreciate the evidence on record and come to a different conclusion on the basis of the evidence, adduced by both the parties. However, Second Appellate Court cannot in Second Appeal again re-appreciate the evidence and come to a different conclusion. In my view, no specific question of law is raised in the appeal. Second Appeal is, therefore, dismissed. [ V. M. KANADE J.]