1 S.A. 396 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 396 OF 2010 Ramrao S/o Narayan Salewar (Udtewar) & another Appellants V E R S U S Laxman S/o Vithal Munde & others Respondents Mrs. S.G. Chincolkar, Advocate for appellants Mr. S.S. Manale, Advocate for respondents CORAM : S.V. GANGAPURWALA, J. DATED : 7th April, 2011 PER COURT : 1. This is plaintiffs’s Second Appeal. The plaintiff had filed a suit for declaration of title and possession over the open space, so also relief of injunction. The trial Court decreed the suit to the extent of 2 feet way, but dismissed the suit in respect of claim for declaration of ownership and injunction. The plaintiff preferred an appeal, appellate Court dismissed the appeal, confirming the Judgment and Decree passed by the trial Court. The plaintiff has assailed the said Judgment in the present Second Appeal. 2 S.A. 396 of 2010 2. Mrs. Chincholkar, learned counsel for the appellants submit that in fact, the suit open space claimed by the plaintiffs was the ancestral property of the plaintiff. The defendant was claiming the ownership on the basis of un-registered instrument of well. As per Section 54 of the Transfer of Property Act read with section 17 of the Registration Act, ownership cannot be transferred on the basis of un- registered instrument. According to the learned counsel the plaintiffs have proved their case, the witnesses have also deposed in favour of the plaintiff. There was no reason to disbelieve the said evidence. Even otherwise, the plaintiffs have made out a case for possession based on title. 3. Per contra Shri Manale, learned counsel for the respondents submit that the plaintiff has to stand or fall on his own. The witnesses of the plaintiffs have themselves contradicted the pleadings made by the plaintiffs. The plaintiffs could not prove that the open space also belongs to them. The Courts below have properly appreciated the evidence and concurrently come to the just conclusion. 4. With the assistance of learned Counsel for the respective parties, I have gone through the judgment. It is the cardinal and fundamental principle of civil jurisprudence that the plaintiff has to 3 S.A. 396 of 2010 swim or sink on his own. The Courts below have observed that the witnesses of the plaintiffs themselves have admitted that plaintiff No. 2 is not allotted any part of the suit property in partition, effected prior to ten years, which is contradictory to the averments made in the plaint and map, so also the sale-deed produced on record. The dimensions and the location of the property has also been discussed by the Courts below. After evaluation and appreciation of evidence, so also taking into account, the contradictions in the deposition and the pleadings both the courts have concurrently arrived at the conclusion that the plaintiff could not prove their case, though the title would not be vested pursuant to un-registered sale-deed in favour of defendants, but unless plaintiffs established their case the plaintiffs would not be entitled for any relief. 5. In the light of the same, Second Appeal, being sans substantial questions of law, is dismissed. However, there shall be no order as to costs. ( S.V. GANGAPURWALA, J ) SDM*396.10SA/070411 4 S.A. 396 of 2010