1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 159 OF 1995 Bapu S/o Shahubuwa Bharati, Age : 40 Years, Occu. : Labour, R/o Maliwada, Tq. Pathri, District Parbhani. -- -- -- APPELLANT (Orig. Deft. No. 1) Versus 1. Janabai W/o Khushalbuwa Bharti, Age : 40 Years, Occu. : Household, R/o Pathri, Dist. Parbhani. 2. Niwarti S/o Raoji Raswe, Age : 40 Years, Occu. : Agril., R/o Maliwada, Tq. Pathri, District Parbhani. ---------------------------------------------------------------------------------------------- 3. Deorao Bhuta, Age : 54 Years, Occu. : Agril., R/o Maliwada, Tq. Pathri, District Parbhani. ---------------------------------------------------------------------------------------------- Deleted vide letter dated 13.06.1996 by Additional District Judge, Parbhani. -- -- -- RESPONDENTS (R. No. 1 orig. plaintiff, R.No. 2 and 3 Orig. Defts. No. 2 & 3) Shri R. S. Shinde, Advocate for the Appellant. Shri D. K. Kulkarni, Advocate for the Respondent NO. 1. The Respondent NO. 2 served - absent. 2 CORAM : N. D. DESHPANDE, J. Date on which Judgment is reserved : 04.12.2009 Date on which Judgment is pronounced : 08.12.2009 J U D G M E N T : 01. The present appeal is directed against the judgment and decree passed in Regular Civil Appeal No. 133/1998 dated 21.01.1995 by the learned IInd Additional District Judge, Parbhani, thereby confirming the judgment and order dated 28.06.1988 passed by the learned Trial Court (Civil Judge Junior Division, Selu) in Regular Civil Suit No. 162/1984. 02. The present appellant/original defendant No. 1 has preferred this second appeal against the concurrent findings of both the Courts below and on substantial question of law relating to the point of relationship, non framing of essential issues and failure to record finding on those issues. The appeal is admitted by this Court vide order dated 21.06.1995. 03. Heard Shri Shinde, learned counsel for the appellant and Shri Kulkarni, learned counsel for the respondent No. 1. The present appellant is the original defendant No. 1. The material facts can be stated briefly as under : The plaintiff Janabai filed a suit for declaration of ownership 3 and also for recovery of possession of the area i. e. Western portion East-West 31.5 feet x North-South 35 Feet, which is part and parcel of the suit house No. 2673 situated at Pathri and for perpetual injunction restraining the defendants from interfering in the possession of plaintiff with regard to the remaining Eastern portion of the suit house on the following cause of action. 04. The plaintiff Janabai claimed to be legally wedded wife of one Khushalbuwa S/o Sukhdevbuwa Bharti. The house property originally belonged to Sukhdevbuwa of Pathri and after his death his son Khushalbuwa became the owner of the house property and upon his death his wife i. e. widow Janabai became owner. 05. It is also alleged that defendant No. 1 with the help of other defendants No. 2 and 3 illegally dispossessed the plaintiff from the Western portion of the suit house about 2 to 3 years prior to filing of the suit, however, she continued to be in possession of remaining half Eastern portion. So she claimed perpetual injunction to protect her present possession with regard to Eastern portion. 06. The defendants denied the relationship of plaintiff as widow of deceased Khushalbuwa. Said Khushalbuwa and his sister Godawari are the only legal heirs of deceased Sukhdevbuwa. Said Khushalbuwa was suffering from tuberculosis and during illness throughout Godawaribai and defendant No. 1 both residing in the suit property itself, were looking after him till he died leaving behind no legal heir. It was also contended that after death of Khushalbuwa his sister Godawari came into possession of the entire suit house and 4 she sold half Eastern portion to Devrao defendant No. 2 which is in his use and possession. On these grounds, respondent No. 1/defendant prayed for dismissal of the suit. 07. I perused the impugned judgments passed by both the Courts below and there are concurrent findings on these important issues, accepting plaintiffs claim to the suit property being the widow of deceased Khushalbuwa. It is not disputed that suit property belongs to Sukhdevbuwa and it is also established on record about their title. There is also evidence of dispossession of plaintiff and according to defendant, it is before six years of the filing of the present suit and Khushalbuwa died prior to 8 to 10 years of filing of the suit. The defendants categorically denied the plaintiffs alleged relationship with Khushalbuwa as legally wedded wife and so also the relation to the house property in possession. So there is no question of suit being barred by limitation. The learned counsel for the respondent No. 1 Shri Kulkarni, therefore, urged for dismissal of the second appeal. I find considerable force in his submissions. The impugned judgment of the learned First Appellate Court and the learned Trial Court are upheld. Consequently, the second appeal stands dismissed with costs. [ N. D. DESHPANDE, J.] bsb/Dec. 09