1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.475 OF 2009 1 Sahebrao s/o Sagaji Sangale, died through L.Rs.: 1-A Smt.Derubai w/o Sahebrao Sangale, age: 60 years, Occ: Agril., R/o Karhewadgaon, Tq.Ashti, District Beed. 1-B Ajinath s/o Sahebrao Sangale, age: 44 years, Occ: Agril., R/o as above. 1-C Sau.Samabai w/o Haribhau Gite, age: 42 years, Occ: Household, R/o Shegaon, District Buldhana. 1-D Sau.Vanchabai w/o Kisan Garje, age: 41 years, Occ: Household, R/o as above. 1-E Sau.Savitribai w/o Ramrao Kekan, age: 40 years, Occ: Household, R/o Mehkar, Tq. Mehkar, District Buldhana. 1-F Parmeshwar s/o Sahebrao Sangale, age: 37 years, Occ: Agril., R/o Karhewadgaon, Tq.Ashti, District Beed. 1-G Rohidas s/o Sahebrao Sangale, age: 54 years, Occ: Agril., R/o as above. 1-H Taramati w/o Kalyan Kekan, age: 30 years, Occ: Household, 2 R/o Muggaon, Tq.Patoda, District Beed. Appellants Versus 1 Patilbuwa s/o Mukinda Sangale, died, through L.Rs: 1-A Ajinath s/o Patilbuwa Sangale, age: 45 years, Occ: Agril., R/o Karhewadi, Karhewadgaon, Tq.Ashti, District Beed. 1-B Bhagwan s/o Patilbuwa Sangale, age: 30 years, Occ: Agril., R/o Kahewadi, Karhewadgaon, Tq.Ashti, District Beed. 1-C Muktabai w/o Sarjerao Khade, age: 30 years, Occ: Household, R/o At Dolewadi, Post: Rajuri, Tq.Jamkhed. 1-D Vithabai w/o Babasaheb Bangar, age: 26 yars, Occ: Household, R/o Matkulli, Tq. Ashti, District Beed. 2 Ajinath s/o Patilbuwa Sangale (Deleted as per order dated 10.07.2008) 3 Babu s/o Mukinda Sangale, age: 40 years, Occ: Agril., R/o as above. 4 Sarjerao s/o Babu Sangale, age: 65 years, Occ: Agril., R/o as above. 5 Laxman s/o Dadabuwa Sangale (Abated as per Court’s order 3 dated 30.04.2008) 6 Bajirao s/o Daji Khandve (Abated as per Court’s order dated 30.04.2008) Respondents Mr.P.D.Suryawanshi, advocate holding for Mr.D.N.Suryawanshi, advocate for appellants. Mr.Bhushan B. Kulkarni, advocate for Respondents No.1A to 1D & 2 to 4. Abated as against Respondents No.5 & 6 vide Court’s order dated 30.04.2008. CORAM: R.M.BORDE, J. DATE : 15 th October, 2009. P.C.: 1 This is an appeal by original plaintiff raising exception to the concurrent judgments delivered by the Courts below. 2 Appellant – original plaintiff instituted Regular Civil Suit No. 80/1979 claiming decree of declaration, ownership and perpetual injunction in respect of house property situate at village Karhewadgaon, Tq.Ashti. According to the plaintiff, agricultural property admeasuring 3 acres 9 gunthas bearing land S.No.1 belongs to him and he has constructed residential house consisting of five khans in the said land. Plaintiff contends that the house property exclusively belongs to him and defendants, having no concern, are trying to interfere in his possession. It is, therefore, prayed to 4 clamp restraint order prohibiting defendants from causing interference in his possession. 3 Defendants have controverted the claim raised by plaintiff by filing written statement. Defendants contend that plaintiff and defendants were tenants of the agricultural land S.No.1 wherein disputed residential premises are situate. According to defendants, house property was constructed jointly by plaintiff and defendants and as such, plaintiff cannot claim the property exclusively for himself. 4 The trial Court, after considering pleadings raised by the parties as well as after receiving evidence led by the parties, recorded a finding that the plaintiff has failed to substantiate his case and as such, dismissed the suit. The judgment and decree passed by the trial Court was subjected to challenge in Regular Civil Appeal No.63/1991 at the instance of plaintiff, which came to be heard and disposed of by III Additional District Judge, Beed, who was pleased to dismiss same by judgment and decree dated 21.10.2000. 5 I have perused the judgments delivered by both the Courts below. Defendants have established that plaintiff and defendants jointly 5 cultivate land S.No.1 whrein residential premises is situate. Plaintiff has failed to establish that construction is raised by him alone. Plaintif places reliance on the copy of the written statement filed by defendants in Regular Civil Suit No.33/1966 whrein a statement is made by defendants that plaintiff has constructed the house in question, however, plaintiff has failed to place on record copy of the plaint, issues framed in the matter and copy of the judgment in that suit. Defendants were also not confronted with the statement appearing in the written statement during the cross examination. The plaintiff has even not put a suggestion to the defendants in respect of earlier statement appearing in the pleadings in R.C.S. No.33/1966. The Courts below were, therefore, justified in not considering the evidence in the form of written statement presented in the earlier suit. The findings of facts recorded by the Courts below are proper and based on appreciation of evidence placed on record. No substantial question of law arises for consideration in the appeal. 6 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa51809