1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD S.A. NO.1582/2004 WITH C.A. NO. 11332/2004 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. S.V. Chandole h/f Mr. S.V. Chillarge, Advocate for applicants. Mr. K.C. Sant, Advocate for respondents no.1 and 2. [CORAM : K.U. CHANDIWAL, J ] Date : 25th March, 2010. PER COURT : 1 Heard. 2 Plaintiff sued for declaration and ownership concerning suit property by R.C.S. No. 367/1994. Lost. R.C.A. No. 272/2001 moved before the Addl. District Judge, Udgir, lost the same and hence second appeal. 3 Before the learned judge, there was unequivocal evidence demonstrating husband of the plaintiff had sold some portion in favour of 2 defendant no.2 Suresh by registered sale deed dated 30/06/1986. This portion had been subsequently purchased by defendant no.1 from defendant no.2 by registered sale deed dated 16/02/1987. It was canvassed by defendant no.1 that he is exclusive owner and possessor of the portion of the house based on the said sale deed. The learned judge found, even if the share of the possession of the plaintiff is to be construed, the husband of the plaintiff had only 10x35 feet portion of the house, it was only after execution of above referred sale deed. 4 Mr. Chandole took me to the evidence of Rajesh Vithal Kamble (defendant no.1) wherein he admits that at the house no. 5-3-21, the plaintiff has two storied building occupied by her. Mr. Chandole urged, in the light of this, there should have been decree of perpetual injunction in favour of the plaintiff / appellant. Next 3 submission is, if the plaintiff’s possession is found to be illegal, it could not be removed without following due process of law. 5 The sale deeds referred to above specified the area sold by husband of the plaintiff on 30/06/1986 and changed hands in favour of defendant no.1 on 16/02/1987, resulting into mutation entry (Exh. 37). Court observed it was the husband who instigated his wife (Plaintiff) who filed suit to take advantage. The plaintiff had also put up the case that her husband was addicted and consequently she got mutation of entire house. The learned judge did not agree to this contention. The plaintiff has major son of 20 years old. The learned judge rightly disputed the mutation carried by the husband in favour of the plaintiff and also found that to avoid the sale transaction, such exercise is accelerated. 6 The admission of the defendant 4 no.1 referred to above, only warrants little consideration. 7 There is no merit in the second appeal as the observations of both the courts are in tune with the record. Barring if the plaintiff is in possession, the defendants (respondents) shall not evict the plaintiff without following due process of law. No costs. C.A. disposed of. [K.U. CHANDIWAL, J.] tsk/sa1582.04