FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 9 OF 2007 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 28 th July, 2009. 1 This is an application for condonation of delay of 3371 days occurred in presenting an application for restoration of the second appeal which came to be dismissed for want of prosecution on account of failure to pay bhatta. It is stated that the client is old and illiterate and is not at all at fault. Considering the contents of the application, the application deserves to be allowed. Delay of 3371 days occurred in presenting the application seeking restoration of the second appeal stands condoned. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast27857.95.odt FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION ST. NO. 23008 OF 2006 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 28 th July, 2009. 1 This is an application for restoration of the second appeal which came to be dismissed for want of prosecution. On account of failure of the applicant to deposit Bhatta, the application seeking condonation of delay came to be rejected. As such, the appeal was not numbered at all. Considering the contents noted in the application, order passed by the Additional Registrar refusing registration of the Civil Application no. 860/1996 alongwith Second Appeal St. no. 27857/1995 is quashed and set aside. Appeal as well as application are restored to their original number. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast27857.95.odt FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 863 OF 1986 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 28 th July, 2009. 1 This is an application seeking condonation of delay of 37 days occurred in presenting the appeal. 2 Heard Shri Milind Patil, learned counsel for the applicant. For the reasons stated in the application, application is allowed. Delay of 37 days occurred in presenting the second appeal stands condoned. Appeal be registered. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sast27857.95.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL ST. NO. 27857 OF 1995 Manohar s/o Narsu Musle ( deceased through LRs ) .. APPELLANT VERSUS Vijaykumar s/o Shamrao Musle & another .. RESPONDENTS Shri Milind Patil, Advocate holding for Shri D.V. Tele, Advocate for the appelant. ===== CORAM : R. M. BORDE, J. DATE : 28 th July, 2009 PER COURT : 1 This is an appeal raising exception to the concurrent judgments recorded by the courts below. 2 Appellant is the original defendant whereas respondent no. 1 is the plaintiff who instituted Regular Civil Suit no. 61/1981 claiming decree of perpetual injunction against the defendant / appellant. Plaintiff claims to be the owner and in possession of the suit land described in the plaint. He purchased the property on 12-1-1981 in view of execution of registered sale- deed by Laxman Narsu Musale, Dattu Shahaji Musale and Bhalchandra Shahaji Musale. It is contended that on the same day possession was handed over to the plaintiff. Defendant is the brother of Laxman, predecessor in title of the plaintiff. According to plaintiff, since the date of purchase he is cultivating the land. However, defendant is trying to interfere in his possession and as such he has presented the suit claiming decree of perpetual injunction against him. According to the plaintiff, there was partition amongst the brothers which had taken p lace on 25-5-1980 and the suit property which is purchased by plaintiff is allotted to the share of Laxman, Dattu and Bhalchandra. Defendant appeared and resisted the suit by filing his written statement. He has denied the contentions raised by plaintiff. According to him, he is having 5 anas - 4 Paisa share in land block no. 152 and his brother Laxman is having 5 Anas 4 Paisa share and Datta and Bhalchandra have 5 Anna 4 Paisa share. However, the total land is in possession and enjoyment of the defendant since last 25 to 30 years. According to defendant, the predecessors in title of the plaintiff were not in possession of the suit land. As such, it cannot be said that the possession has been handed over to the plaintiff. 3 Trial court after recording evidence of the parties came to the conclusion that the plaintiff has established his case in respect of title as well as possession over the part of the property and as such partly decreed the suit presented by plaintiff. Judgment and decree passed by the trial court was subjected to appeal at the instance of defendant which came to be registered as Regular Civil Appeal no. 43/86 and the same was heard and disposed of by the 2nd Additional District Judge, Osmanabad who was pleased to dismiss the same by judgment and decree dt. 29-7-1995. Appellate court has concurred with the findings recorded by the trial court and categorically recorded finding that the plaintiff has proved his ownership and possession over the suit land. Learned counsel appearing for the appellant has vehemently contended that there was infact no partition as asserted by the plaintiff and it cannot be said that the plaintiff has been put in possession over the suit property by his predecessors in title. 4 Arguments advanced are essentially the matters relating to appreciation of evidence. No substantial question of law arises for consideration in the appeal. Apart from this aspect, it is to be noted that the suit was decreed by the trial court in the year 1986 whereas appeal presented by defendant is also dismissed by the first appellate court on 29-7-1995. Since about more than 25 years the decree in respect of perpetual injunction is operative against the defendant. At this stage, it would not be appropriate to go into the factual aspects of the matter while dealing with the second appeal. There is no force in the appeal. Appeal therefore stands dismissed. 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sast27857.95.odt