1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1316 OF 2004 with CIVIL APPLICATION NO.10098/2004. Purbhaji s/o Jaiku Waywal - APPELLANT VERSUS Gangasagar w/o Dagduba Lonkar - RESPONDENT ***** Mr.RF Totla,Advocate for Appellant; Mr.AS Lomte,Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 15th March, 2010. PER COURT : 1) Heard. 2) Regular Civil Suit No.193/1994 was decreed by the learned Joint Civil Judge, Junior Division, Parbhani on 27.4.2000 to the extent of declaration in favour of the plaintiff for 1 acre from land Survey No.22/A (Gut No.71) situate at Samsapur, Tq. and District Parbhani. Aggrieved plaintiff challenged the same before the learned District Judge at Parbhani being Regular Civil 2 Appeal No.51/2000. The learned Additional District Judge, on re-appreciation of facts and documents, decreed the suit to the extent of 4 acres and 20 gunthas instead of only 1 acre and also restrained the defendant from causing obstruction in possession and enjoyment of the plaintiff. The order of learned Additional District Judge, Parbhani dated 7th July, 2004 is questioned in the present Second Appeal. 3) The learned Counsel in support of the Second Appeal submits, that the formulation of points by the first Appellate Court is contrary to the settled position. Point No.3, about the defendant proving that sale-deed dated 11.7.1978 executed by Yeda Govind Waywal in favour of the plaintiff was outcome of fraud practiced by the plaintiff and her husband on deceased Yada Govinda, could not have been formulated as there was no such issue framed by learned Civil Judge, Junior Division. According to the learned Counsel, in the absence of such issue, the theory of fraud could not be established by the defendant. 4) The other question, according to the learned Counsel is, there was consideration of irrelevant facts by the Court as to why the defendant has not filed a suit for possession. 3 The another point raised was, dismissal of RCS No.82/1979 in default would foreclose rights of the plaintiff to address and agitate the same. 5) The factual matrix of the matter revolves to, Yada Govinda having executed sale- deed dated 11.7.1978 in favour of the plaintiff concerning the suit land for 4 acres 20 gunthas. The defendant came with a defence, it was not sale transaction of 4 acres and 20 gunthas, but it was a transaction of only sale of 1 acre and the rest of 3 acres and 20 gunthas remained undisturbed in possession of the vendor Yeda Govind and thereafter his family members. 6) The assessment of the evidence carried by the learned Civil Judge, Junior Division, was not approved by the learned Additional District Judge, Parbhani. Point No.3 formulated by the learned Additional District Judge, need not be castigated that no issue being framed by the learned CJJD, the learned Additional District Judge, could not formulate such point. The Counsel now submits, that even if such point is formulated, the duty in terms of Order 41 Rule 24 of CPC mandates for the learned Additional District Judge to remand the matter. 7) Though this submission by narration 4 appears to be cozy, however, difficult to digest, firstly, the defence was set up by the defendant that a fraud was played for execution of sale- deed of 4 acres and 20 gunthas as against sale of only 1 acre. Naturally, the theory of fraud was to be established by the defendant dehors the issue, if any, as the defendant was required to face rigour of a suit in the nature of declaration and perpetual injunction on title. Non-formulation of issue by learned CJJD cannot be said to have abridged the rights vest in the defendant. 8) Then comes the contention that point formulated by the learned Additional District Judge was not correct. The learned Additional District Judge was justified in formulating such point, it was in the light of the pleadings of the defendant. 9) The evidence of the plaintiff at one stage state that her suit was for possession by itself will not change the rigour of the contentions, as the plaintiff was equipped with the title document envisaging sale of 4 acres 20 gunthas in his favour. The possession is naturally established by virtue of the sale deed. Examination of adjoining land-holders that he saw plaintiff in possession to the extent of 1 acre 5 or 3 acres 20 gunthas remained out of suit land is of no avail. The observation of the learned Additional District Judge could not be said to be based on consideration of irrelevant facts. 10) In the result, I do not see any substantial question of law could be projected. The findings do not flow or associated with any perversity or illegality. Second Appeal is sans merit, it is dismissed with CA. 11) The protection granted earlier is extended for a period of eights weeks. (K.U.CHANDIWAL) JUDGE bdv/sa1316.04