1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 757 OF 2004 WITH CIVIL APPLICTION NO.4495 OF 2004 JAITUNBI NAJARALI AND ANOTHER ..Appellants Versus UMARALI TALEBALI FAKIR AND OTHERS ..Respondents ... Advocates appearing for : Appellants: Shir M.G.Kolse Patil, Respondents : 1(I),(II),(X), 1A, 1C, 1D : Shri V.T.Choudhary, Respondents : 1(V),(VI), (VII) and (XI), 1/8 : Dismissed, Respondents : 1(1)A,C & D, 1(iii) & (iv) : Served, and Respondent 1B : Shri Ashok A. Mundhe. ... CORAM : R.M.BORDE, J. Dated : 1.9.2009 PER COURT :- 1. This is an appeal filed by the original plaintiffs raising an objection to the judgment and decree passed by the learned II Additional District Judge, Jalgaon in Regular Civil Appeal No.63 of 1994, dated 3.10.2001, thereby allowing the appeal presented by the original defendants and setting aside the judgment and decree passed by the learned Civil Judge J.D. Bhadgaon, dated 10.2.1994, in Regular Civil Suit No.24 of 1990. 2. It is pointed out by the learned counsel for the appellants that appellant No.2 has died on 28.4.2009. Thus, the appeal abates against appellant No.2. 2 3. The plaintiffs have presented the suit claiming decree of injunction in respect of the Gram Panchayat property bearing House No. 697/B admeasuring 21 x 24 ft. of Bhadgaon . It is the contention of the plaintiffs that the property initially stood in the name of plaintiff No.2 - Najarali and he has transferred the said property in the name of plaintiff No. 1 - Jaitunbee. On the basis of the said transfer, necessary entries in the Gram Panchayat record were taken in the name of plaintiff No.1. It is the contention of the plaintiffs that defendants had no right, title or entitlement in respect of the disputed property, and that they are trying to interfere in possession of the plaintiffs over the said property. 4. The defendants appeared and resisted the suit by filing written statement. According to them, they have purchased the property from the original owner Sandusha Baksusha Fakir by executing a sale deed. It is contended that they are in possession of the property on the basis of the said sale deed. According to them, the plaintiffs, in fact, are not residing in the village Bhadgaon but they are residing at Vadji. According to the defendants, the plaintiffs are not in possession of the property. The defendants have placed reliance on the entries recorded in the Village Panchayat record in respect of the suit property. 5. After considering the evidence on record, the trial Court granted decree in favour of the plaintiffs and restrained the defendants from causing interference in possession of the plaintiffs over the suit house bearing No.697/B. The defendants were further ordered to hand over vacant and peaceful possession of the suit house to the plaintiffs. 3 6. The judgment and decree of the trial Court was subjected to an appeal, being RCA No. 63 of 1994, at the instance of the defendants, which came to be allowed by the lower appellate Court. It is recorded by the first appellate Court that the plaintiffs have not established the title in relation to the suit property. 7. I have perused the judgments recorded by both the Courts below and also considered the arguments advanced by learned counsel for the respective parties. 8. After presentation of this appeal, notices were issued to the respondents. However, some of the legal heirs of respondent No.1 could not be served. The appeal came to be dismissed against respondents 1(V),(VI), (VII), (XI) and 1/8. 9. Plaintiffs / appellants are seeking a decree in respect of the recovery of possession of part of the suit property as well as they are seeking an order of perpetual injunction against the defendants / respondents. The relief of recovery of possession, as sought by the appellants in the present appeal cannot be considered in absence of some of the necessary parties to the appeal. 10. Apart from this aspect, it is also required to be noted that the plaintiffs have failed to establish the source of title in relation to the suit property. It is stated by the plaintiffs in the pleadings that the property came to plaintiff No.1 by virtue of the transfer effected by her husband. It has not come on record as to how the husband had acquired title to the 4 property. Plaintiff No.2 has stated in his deposition before the trial Court that the property originally belonged to one Sandusha and that he has not purchased that property from said Sandusha. The defendants, however, have based their claim on the sale deed alleged to have been executed by Sandusha. The alleged transfer effected by plaintiff No.2 in favour of his wife plaintiff No.1 is stated to be by way of executing a document on a simple paper. Admittedly, there is no registered instrument executed for effecting the transfer. Therefore, the transfer in the name of Jaitunbi also cannot be considered to be valid and has no effect in the absence of execution of any registered instrument in her favour. 11. Apart from this, it has also been observed by the first appellate Court that the plaintiffs based their claim on a Sanad issued by the Special District Inspector of Land Records, Jalgaon and it pertains to property Gut No.972 which admeasures 9 x 2.1 meters. The suit property claimed by the plaintiffs is bearing House No.697/B and it admeasures 21 x 24 meters. The description of the property noted in the Sanad and the property claimed by the plaintiffs do not have any resemblance. In these circumstances, the first appellate Court was justified in recording a finding that the plaintiffs have not established their entitlement in respect of the suit property. 12. Learned counsel for the appellants has vehemently contended that the defendants have also failed to establish their title in relation to the property by referring to certain observations made in the judgment delivered by the trial Court. However, it is to be noted that it is the plaintiffs who have approached the Court seeking relief of recovery of 5 possession as well as decree for perpetual injunction against the defendants. It is necessary for the plaintiffs to establish their claim. In absence of proof, vis-a-vis plaintiffs and disputed property, they are not entitled to claim a decree from the Court. Further, no substantial question of law arises for consideration in the appeal. The appeal, therefore, is liable to be dismissed. 13. In the result, the Second Appeal stands dismissed. No order as to costs. 14. In view of the dismissal of the appeal, Civil Application does not survive and it accordingly stands disposed of, with no order as to costs. (R.M.BORDE, J.) ... akl