1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 248 OF 1989 Anna Trimbak Gite, age major, occup.agriculture, r/of Kavitkheda, Taluka Kannad Appellant/ori. Dist. Aurangabad. Plaintiff versus Dharmudas s/o Gulabdas age major, occup.agriculture, r/of Kavitkheda,Taluka Kannad Respondent/ori. District Jalna. Defendant No.1. ----------------------------------------------------------- Shri G.S. Kulkarni, Advocate, for the appellant. Shri D.P. Bakshi, Advocate, for the Respondent. ----------------------------------------------------------- Coram : P.R. Borkar, J. Date : March 30, 2010 ORAL JUDGMENT 01. This second appeal is filed by original plaintiff in R.C.S. No.3 of 1979 being aggrieved by the judgment and order of the learned III Assistant District Judge, Aurangabad in Regular Civil Appeal No. 147 of 1986 decided on 12.1.1989 thereby reversing the judgment and decree passed by the learned Civil Judge, Junior Division, Kannad in R.C.S. No.3 of 1979 on 2 9.4.1986 in favour the of the plaintiff and against Defendant No.1. 02. Briefly stated, one Ayodhyadas was the owner of land bearing survey No.48 admeasuring 6 acres 22 gunthas situated at village Kavithkheda, Taluka Kannad. He had two sons, namely, Laldas and Jankidas. After the death of Ayodhyadas, in partition, each of the two sons got 3 acres and 11 gunthas land to their respective shares. Out of land of his share, Laldas sold 2 acres 20 gunthas to plaintiff by sale deed dated 13.1.1971 (Exh.36). As per the case of the plaintiff, land sold included portion of well in dilapidated condition and a threshing floor and since then the plaintiff is in possession thereof. According to the plaintiff, respondent-defendant No.1 obstructed his possession over the said portion of 2 acres 20 gunthas and therefore suit for declaration and injunction was filed. It is also not disputed at this stage that the land sold to the defendant-defendant No.1 was given Gat No.5 during consolidation proceedings. 03. Respondent-Defendant No.1 Dharmudas filed Written Statement at Exhibit 10 and denied the 3 allegation that he caused any obstruction to the plaintiff's enjoyment over Gat No.5 admeasuring 2 acres 20 gunthas. He also denied that threshing floor and portion under dilapidated well were parts of Gat No.5 and as such owned and possessed by the plaintiff. According to Defendant No.1 those are the parts of Gat No.4 owned and possessed by him. He, therefore, prayed for dismissal of the suit. 04. Since the plaintiff did not take any steps against original Defendant No.2 Sumanbai, the suit was dismissed against her on 16.11.1983. Defendant No. 4 Bansidas was reported dead during pendency of suit vide application Exh.23, but his legal heirs were not brought on record and, therefore, suit abetted against Defendant No.4. Defendant No.3 Sushilabai did not appear in the court and so the suit proceeded ex-parte against her. In the circumstances, it is only Defendant No.1 who contested the suit. 05. It is not disputed that Jankidas, who was owner of 3 acres 11 gunthas land, had two sons, namely, Gulabdas and Bansidas and original Defendant No.1 to 3 are son and daughters of Gulabdas. 4 06. Shri D.P.Bakshi, learned Counsel for the respondent, specifically drew my attention to the prayer clause in the plaint and submitted that claim is in respect of Gat No.5 (survey No.48/4) admeasuring 2 acres 20 gunthas. The main question that arises is whether the portion of dilapidated well and the threshing floor were part of the land sold to the plaintiff and whether those are in Gat No.5 or Gat No. 4. The sale deed at Exh.36 does not make any reference to the threshing floor, but it does refer to the well in dilapidated condition being situated in the land sold. It is also specifically stated that survey No.48/4 admeasuring 2 acres 20 gunthas was sold as abutted by; East : Public way and grave yard. West : Land of Gulabdas and Jankidas South : Public Road North : Village gaothan. 07. One of the major evidence on which reliance was placed by learned counsel for the appellant- plaintiff is the decree passed in R.C.S. No.72 of 1954 in favour of Laldas and against Jankidas. The decree is in Urdu, Marathi translation of which is placed on record and the portion shown therein as disputed 5 part, is a portion on one side of which there is land of plaintiff and that of the Defendant on the other side. The well in dilapidated condition appears to be in the area beyond the disputed portion. there is a line drawn between the disputed portion and the well. 08. The first appellate Court, which allowed the appeal and set aside the decree of the trial court, observed in paragraph 15 of its judgment that though the trial court was impressed by the fact that the said disputed portion in the decree tallies with the disputed portion in this case, still it failed to appreciate that survey No.48/3 is given Gat No.4 and it is a separate land. The Plaintiff's area is 2 acres 20 gunthas which is given Gat No.5. The sale deed does not show that the plaintiff purchased land more than 2 acres 20 gunthas in area and if Gat No.4 is to be included as property of the plaintiff, in that case the area of the plaintiff's land will be 2 acres 30 gunthas. It cannot be said that this reason given by the first appellate court is devoid of any merits. If we see V.F. 7x12 extract on record, it is apparent that Gat No.5 is shown to be 2 acres 20 gunthas. Even the area under cultivation is 101 gunthas as can be seen from Exhibit 27. So, it is not that Gat No.5 is 6 of lesser area than purchased by the sale-deed and some portion of it was given Gat No.5. Therefore, the first appellate court did not commit any error in holding that if area of Gat No.4 is to be included in the property of the plaintiff, then his area would be 2 acres 30 gunthas which is more than the area of 2 acres 20 gunthas purchased by him under the sale deed. The plaintiff does not claim right to the land by source other than the sale deed in question. 09. If we consider the consolidation statement t (Exh.32), it was shown therein that half of the portion of Gat No.4 was of Bansidas and other half portion belonged to Gulabdas. Total area of Gat No.4 is shown to be 10 gunthas. It does not show any well. The certified copy of the consolidation certificate issued in the name of Bansidas is at Exhibit 31 shows Gat No.4 admeasuring 10 gunthas. 10. It is true that Defendant No.1 Dharmudas in his chief examination did state that he did not cause obstruction to the portion of dilapidated well in the land of the plaintiff, but in cross examination he stated that in Gat No.4 admeasuring 10 gunthas a well was dug by Jankidas but he could not remember when 7 Jankidas sunk the well. He, however, asserted that it was property of Laldas. He also asserted that the threshing floor belonged to Laldas. It is not that Laldas sold entire property admeasuring 3 acres 11 gunthas to the Plaintiff. Defendant No.1 specifically denied that the well in dilapidated condition and threshing floor were in the land of the Plaintiff. 11. This appeal is admitted by order dated 16.11.1989 on the substantial questions of law stated in ground Nos.7 and 9 of the appeal memo which are as follows; (7) That, the Appellate court erred in not properly and legally correct by appreciating the decree passed i the earlier Suit bearing No.74/54 of 1354 Fasli. The reasoning given for discarding the decree in the earlier suit is illegal. (9) The predecessor-in-title Laldas has stated on oath about the inclusion of the portion of threshing floor and the well alienated to the Plaintiff to have been relied on by the Appellate Court. Appreciation of the evidence made by the Appellate Court is not legally proper which has resulted in miscarriage of justice. 12. After giving anxious consideration to the submissions made at the bar and having gone through 8 record and the judgments of both the courts below, in my opinion, the view taken by the first appellate court is proper and legal view based on evidence. The view taken cannot be said to be perverse requiring interference in this second appeal. 13. In the circumstances, second appeal stands dismissed. pnd/sa248.89 (P.R.BORKAR, J.)