1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 251/2002 (Uttam Narayan Khadase VERSUS Shaligram Baliram Khadase & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri R.D. Najbile, counsel for the appellant. CORAM : SMT. VASANTI A. NAIK, J. DATE : SEPTEMBER 22, 2008. Heard the learned counsel for the appellant. The appellant is the original defendant. A suit was filed by the plaintiffs for a declaration that they had a share in the five mango trees standing on survey no.116. The plaintiffs were selling the fruits of these mango trees till the year 1990, but, in the year 1990, when the plaintiffs were trying to sell the fruits of the trees to one Mujawar, the defendant asked Mujawar not to purchase the fruits of the said mango trees on the ground that the trees were exclusively owned and possessed by him. In this background, the relief of declaration and permanent injunction was sought by the plaintiffs. The defendant resisted the claim of the plaintiffs. It was, however, admitted by the defendant that the plaintiffs and the defendant 2 were the members of the joint family who were separated later on. The defendant pleaded that after partition, only five mango trees were situated in the portion of the defendant and the five mango trees in the portion of the land belonging to plaintiff Waman. The defendant pleaded that the case of the plaintiffs was liable to be dismissed. On the aforesaid pleadings of the parties, the trial Court framed the issues and after considering the evidence dismissed the suit of the plaintiffs by holding that the plaintiffs had failed to prove that they had share in the mango trees standing on the land survey no.116. The trial Court further held that there was no evidence on record to show that they were taking the fruits from the mango trees. The first appellate Court reversed the findings recorded by the trial Court to hold that the plaintiffs had succeeded in proving that they had share in the mango trees. The first appellate Court further held that the defendant had obstructed the plaintiffs in their use and enjoyment of the mango trees to the extent of their shares. While reversing the findings recorded by the trial Court, the first appellate Court 3 considered the pleadings of the parties as well as the evidence tendered by the parties on record. The first appellate Court also considered some of the admissions of the defendant in his cross- examination. The Court held that the plaintiffs had not lost their share in the suit mango trees though the survey number on which the trees were standing was allotted to the share of the defendant, as all the parties to the proceedings had share in the mango trees which were standing on the entire land which was possessed by the joint family. The findings recorded by the first appellate Court are pure findings of facts and they do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE