1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 303/2008 (Ragho Rama Katwate through L.Rs. Vs. Vithu Rama Katwate & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 24 th JULY, 2008. Heard Shri Kilor for the appellant, and Shri Sable for respondent nos. 1, 3 and 4. The appellant is the original defendant no.1. A suit was filed by the respondent no.1/ original plaintiff for a declaration that he was the owner of the suit property which comprises of 5½ acres of land from Gat No.233. The plaintiff and the defendant no.1 are the real brothers. It was the case of the plaintiff that the property, initially, belonged to their father and after the death of the father, the property Gat No. 233 which comprised of 11 acres, was divided between the plaintiff and the defendant no.1 and each of them was allotted 5½ acres of land. The defendant no.2, the other brother of the plaintiff and the defendant no.1, was given land at Gopalpur. Since the defendants had started disturbing the peaceful possession of the plaintiff 2 over the suit land, a suit was filed for declaration and permanent injunction. The defendant no.1 denied the claim of the plaintiff and pleaded that after the death of their father in the year 1972, there was a family arrangement as a result of which the defendant no.1 came in possession of 2.80 acres of land from Gat No. 233. It was further pleaded by the defendant no.1 that there was a partition between the brothers in the year 1977-78 and the defendant could retain the ownership and possession over 2.80 acres of land from Gat No. 233 in view of the same. According to the defendant, the plaintiff was granted only 1.62 hectares of land as the land of the plaintiff was fertile and since the land belonging to the share of the defendant no.1 was not so fertile, he was granted 2.80 hectares of land. He, therefore, sought for dismissal of the suit. The trial Court, after considering the evidence on record, held that the plaintiff had failed to prove that he became the owner of 5½ acres of land by the partition of the year 1977. The Court, therefore, held that the plaintiff was not entitled to the relief sought in the plaint. The Court also held that the plaintiff had not proved his possession over the suit property. While recording the aforesaid findings, the Court heavily relied on the admission 3 of the plaintiff that after the partition of the year 1977, the names of all the members of the family were recorded in the record of rights. The Court also found that the plaintiff had knowledge of the mutation entry recorded in favour of the defendant no.1 on 12/4/1988, but had not challenged the same till the institution of the suit in the year 1992. The first appellate Court reversed the findings recorded by the trial Court to hold that the plaintiff had succeeded in proving his ownership over 5½ acres of land. The Court relied on the oral evidence of the witnesses examined on behalf of the parties and gave more weightage to the evidence of the P.W.2 and P.W.3 who were independent and reliable witnesses who could throw much light on the controversy. The Court held that their evidence was not shaken by the cross-examination. The first appellate Court further considered that the defendant had not produced anything on record to show that the plaintiff had himself filed an application for recording the name of the family members in the revenue record. The Court further observed that there was no document to prove and establish that the defendant no.1 was allotted 2.80 hectares of land in partition. The other revenue entries were considered by the first appellate Court to hold that the plaintiff was shown to be the owner 4 and in possession of 2 hectares and 16 Are of land. 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. In fact, on perusal of both the judgments, it is clear that the trial Court had not considered the entire oral and documentary evidence on record and the first appellate Court had considered the same. In these circumstances, the second appeal is dismissed with no order as to cost. JUDGE RMP