1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 223/2007 (Narayanapa Mahadeoappa Kashte Vs. State of Mah. & 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 : 8 th AUGUST, 2008. Heard Shri Mohta for the appellant, Shri Sonak, the learned A.G.P. for respondent nos. 1 and 2, and Shri S.S. Deshpande for respondent no.3. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the sale of the suit property, in auction, in favour of the defendant no.3 was not valid and was illegal. The plaintiff also sought for possession of the suit property in case it was found that the defendant no.3 was in possession of the same. It was the case of the plaintiff that one Raje Bhaskarrao Deshmukh was the owner and possessor of the suit property bearing Plot No. 85 in Survey No. 23/1. According to the plaintiff, he had purchased the same on 20/3/1968 for a consideration of Rs. 200/- by a registered sale deed. The suit plot was put to an auction for the non- 2 payment of Non-Agricultural Assessment and was sold to the highest bidder i.e. the defendant no.3. It was the case of the plaintiff that the land was non- agricultural land and no assessment could be levied against it. According to the plaintiff, the property was owned and possessed by the plaintiff and the same could not have been sold in auction for non- payment of taxes, without issuing any notice to the plaintiff. The defendant nos. 1 and 2 i.e. State of Maharashtra and the Tahsildar, Washim filed their written statement and denied the claim of the plaintiff. It was pleaded by the defendants that the auction was held for recovery of arrears of assessment. It was pleaded by the defendant nos. 1 and 2 that the property was never mutated in favour of the plaintiff and hence there was no question of issuing notice to him. It was also pleaded by the defendant nos. 1 and 2 that the auction sale in favour of the defendant no.3 was confirmed. The defendant no.3 also filed his written statement and denied the title of Raje Bhaskar Deshmukh over the suit property. It was pleaded by the defendant no.3 that the suit property i.e. Plot No. 85 from Survey No. 23/1 was previously owned by one Gunwant Mohiniraj Deshmukh and the same property was auctioned for non-payment of 3 assessment dues. The defendant no.3 had purchased the same in auction for an amount of Rs. 35,000/- and the same was confirmed on 1/6/1994. The defendant no.3 had also pleaded that he was a bona fide purchaser and since the plaintiff had not taken any objection in the said proceedings, the suit was liable to be dismissed. The trial and the appellate Courts, on consideration of the evidence on record, held that the plaintiff had failed to prove that the assessment on the suit property was incorrectly made. The Court further held that the plaintiff had failed to prove that he was an owner of the suit property and his predecessor-in-title Raje Bhaskar Deshmukh had title to the same. The Courts then held that the plaintiff further failed in proving that the auction was void and liable to be set aside. The judgments passed by both the Courts are challenged in the instant second appeal. I have perused both the judgments in detail and also perused the record and proceedings. Both the Courts have, rightly, held that the plaintiff had not succeeded in proving his title in the suit property and also failed to prove title of his predecessor Raje Bhaskar Deshmukh. The Courts heavily relied on Exh. 88 which showed that Plot No. 85 in Survey No. 23/1 was standing in the name 4 of Gunwant Mohiniraj and not in the name of Raje Bhaskar Deshmukh. The Courts further considered the fact that though the plaintiff claimed to have purchased the suit property in the year 1968, the plaintiff did not take any steps to enter his name in the revenue records and pay the tax in respect of the suit property. The Courts had rightly considered the admissions of the plaintiff as also Raje Bhaskar Deshmukh in their cross- examination to non-suit the plaintiff, on his claim over the suit property. Though the plaintiff relied on the documents at exhs. 49 and 50 by which, according to the plaintiff, he was asked to deposit the Sanad fees, both the Court rightly held that Exh. 49, the notice clearly showed that it pertained to City Survey No. 36 and not Survey No. 23/1 and specially, plot no. 85 therein. The Courts also discarded Exh. 50 which was produced by the plaintiff, as though the document was a xerox copy of a receipt, the figures Survey No. 23/1 and Plot No. 85 were written on the same, in ink. The Courts also rightly held that the plaintiff failed to prove that the plot in question was not liable for non-agricultural assessment, as the plot was liable for non-agricultural assessment by virtue of the order passed by the Sub Divisional Officer in the year 1987, which was produced in the matter at Exh. 73. 5 The findings recorded by both the Courts are pure findings of facts based on a proper appreciation of the material evidence on record. They clearly show that the plaintiff had not succeeded in proving his ownership over the suit property. In this view of the matter, second appeal is liable to be dismissed and, therefore, is dismissed as such with no order as to costs. JUDGE RMP