1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.77 OF 2010 Dharu Pirya Thakare (Bhil), age: 62 years, Occ: Agriculture, R/o Aurangpur, Tal.Shahada, District Nandurbar. Appellant Versus Bijanbai w/o Magan Wagh, age: 63 years, Occ: Agriculture, R/o Korit, Tal. Nandurbar, District Nandurbar. Respondent Mr.A.G.Magare, advocate for the appellant. CORAM: R.M.BORDE, J. DATE : 08 th February, 2010. P.C.: 1 This is an appeal by original plaintiff raising exception to the concurrent judgments delivered by both the Courts below. 2 Plaintiff instituted suit claiming declaration of title and perpetual injunction against defendant in respect of landed property. Original defendant is daughter of uncle of plaintiff and the property belongs to uncle of the plaintiff. According to plaintiff, his uncle died few years back and until his death, he was residing with plaintiff’s family and his land was also looked after by plaintiff and his father. Defendant is married daughter of his uncle i.e. his cousin sister and her marriage took place long back and she is 2 residing with her husband at distant place. The property in dispute is in possession of plaintiff. However, there is obstruction to the possession of plaintiff at the hands of defendant, therefore, he was constrained to approach the Court. Plaintiff contends that the property has been mutated in his name as his uncle himself has consented for recording such mutation. Plaintiff, in the alternative, has also claimed that he has become owner of suit property by virtue of adverse possession. 3 Defendant appeared and resisted suit by filing written statement. She has controverted the contentions raised by plaintiff. According to her, during the life time of her father, he himself was cultivating suit land and after his demise, defendant was cultivating the lands. Plaintiff, in collusion with revenue authorities, got his name mutated in the revenue record. Defendant has also claimed that she has been dispossessed from the suit property and as such she is entitled to claim recovery of possession. Defendant, therefore, by presenting counter claim, sought relief in respect of delivery of possession of suit land against plaintiff. 4 The trial Court, after receiving evidence led by the parties, recorded a finding that the plaintiff has failed to establish his case. As such, suit presented by plaintiff came to be dismissed. At the same time, trial Court recorded a finding that defendant has established her entitlement to suit property and as such, directed plaintiff to deliver possession of suit land to the defendant. 5 The judgment and decree passed by the trial Court was subjected to challenge in appeal presented by plaintiff, being Regular Civil Appeal No.18/2006. The appeal came to be heard and disposed of by Ad 3 hoc District Judge-1, Shahada, who was pleased to dismiss same by judgment and decree dated 13.01.2008. 6 I have perused judgments delivered by both the Courts below. Plaintiff, in one breath, is claiming that he has received the property from father of defendant and her (defendant’s) father has consented for recording his name in revenue record. In the same breath, plaintiff claims that he has become owner of suit property by virtue of adverse possession. Plaintiff neither pleaded nor proved that he had a hostile animus against the real owner i.e. father of defendant. However, he claims vesting of title in himself. It has also not been substantiated by plaintiff that revenue entry in question is got recorded with the consent of father of defendant. Admittedly, property belongs to father of defendant and as such, on his demise, defendant is entitled to succeed to the property. The trial Court was, therefore, justified in dismissing suit presented by plaintiff and allowing counter claim presented by defendant. The reasons recorded by both the Courts below are proper and based on appreciation of evidence placed before the Court. I do not find any infirmity in the reasons recorded by the Courts below. No substantial question of law arises for consideration in the appeal. 7 Appeal, therefore, stands dismissed. In view of dismissal of suit, pending Civil Application does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa7710