1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.317/2009 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. S.D. Kulkarni, Advocate for appellants. Mr. V.P. Latange, Advocate for respondents. [CORAM : K.U. CHANDIWAL, J ] Date : 7th April, 2010. PER COURT : 1 Heard Mr. Kulkarni and Mr. Latange extensively. 2 R.C.S. No. 315/2003 was decreed by IV th Jt. Civil Judge (J.D.), Aurangabad on 16/09/2004, declaring plaintiff to be owner of area of 3 gunthas out of Gat no. 307 of village Varud by registered sale deed dated 14/02/2003. The Court also directed entitlement of plaintiff for 3 gunthas and asked to hand over possession of 2 said area to the plaintiff within month. This was challenged by the defendants before appellate court in R.C.A. No. 261/2004. First appellate court, considering the evidence and the documents, reversed the finding of handing over possession to the plaintiff. lHowever, there operates declaration in favour of the plaintiff and same is now subject of criticism in second appeal. 3 Mr. Kulkarni submits when Court could reach to a declaration that plaintiff to be owner of 3 gunthas of land, there is no justification in Court declining to grant decree for possession of 3 gunthas as, the decree of declaration by the Court would be merely paper decree, loosing sanctity to the court orders. He urged, the evidence should have been properly appreciated by first appellate court. 4 There is no controversy about the plaintiff to have purchased 3 gunthas from land Gat no. 307 by sale deed 3 dated 14/02/2003. The area to which plaintiff was staking claim, was already enjoyed by the defendant, supported with document of sale in 1956 for area of 66’x77’. The document indicated dimensions as “the measurement by hands”. The contention that the lower court should have accepted plaintiff’s case and it should not allow the decree to be a paper decree, though is cozy in its nature. However, difficult to digest and act upon as the very stand taken by plaintiff rebelled against him. 5 The plaintiff/s did not array his vendor to claim a particular portion from the land Gat no.307. The stand that it was purchased for digging well may be correct. However, at the material time, there existed structure of the defendant in particular portion. The vendor Venkatrao pleaded ignorance about possession of either defendant or purchased by one Sandu as confirmed by Ayub khan, as Ayub khan has 4 produced sale deed. 6 It is pertinent, the plaintiff could not establish to the satisfaction of the Court the identity of the property purchased by him. Consequently, first appellate court was justified in observing that the plaintiff is not entitled for possession of the specific portion of 3 gunthas and which is in possession of the defendants. Though there is a sale deed in favour of the plaintiff however, that does not mean it will allow the plaintiff to stake claim to the property which is already in possession of the defendant since 1956, based on title. The observations of the Court of first instance that there was no document produced by the defendant barring the un registered sale deed for Rs.95/- of 1956, is factually incorrect. Several pieces are sold by the vendor overlapping few plots, without there being proper lay out and miserable situation has surfaced for which plaintiff 5 should thank himself. Appeal sans no merit. Second appeal dismissed. Liberty to appellant to take appropriate action. [K.U. CHANDIWAL, J.] tsk/sa317.09