: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.527 OF 2007 SECOND APPEAL NO.527 OF 2007 SECOND APPEAL NO.527 OF 2007 Vinod Annaso Nitwe ...Appellant V/s. Namdev Samaj Unnati Mandal, . Thru’Madhavrao Pandurang Ganbavle & Ors....Respondents Mr.N.V. Bandiwadekar, Advocate, for the Appellant. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 25TH FEBRUARY, 2008. DATE : 25TH FEBRUARY, 2008. DATE : 25TH FEBRUARY, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate appearing for the appellant. The Second Appeal is preferred by the original plaintiff. The Trial Court decreed the suit and the Appellate Court has reversed the decree on the basis of separate Appeals preferred by different defendants. 2. According to the case of the appellant-plaintiff, the suit property originally belong to his great grandfather by the name Devappa who expired on 7th May, 1957. According to him, the said Devappa executed a Will dated 10th December, 1956 by which was a bequest made of the suit property in favour of the appellant-plaintiff. 3. The case of the appellant is that the : 2 : erstwhile Jaysingpur Nagar Parishad in the year 1942 decided to sell plots for developing new residential area. The Municipal Council had agreed to sell one block to the said Devappa for the cost of Rs.100/- and accordingly Devappa obtained block No.215 after paying the said amount. It is the case of the appellant that notwithstanding the allotment of the plot in favour of the said Devappa, in city survey inquiry which was conducted ex-parte, name of the 3rd respondent (State of Maharashtra) was shown in the city survey records. The contention of the appellant in the suit is that after the demise of his grandfather he continued to be in possession of the suit property as the owner thereof. The appellant has referred to order dated 26th June, 1995 passed by the Collector which holds that the suit property has been reserved for the purposes of the 3rd respondent. The submission of the appellant is that the area falling within the limits of the said Jaysingpur Nagar Parishad was forming part of the erstwhile Kolhapur State and after the merger of Kolhapur Sansthan, 3rd respondent-State Government was bound by the agreement between the Nagar Parishad and the said Devappa. The suit was contested by various defendants. It was denied that Jaysingpur Nagar Parishad had decided to allot the plot to the said Devappa. : 3 : 4. The Trial Court held that the appellant has established that his ancestors were inducted in the suit property. The Trial Court held that the order dated 26th June, 1995 was null and void. The Trial Court granted the relief prayed for in the alternative of a decree for possession. Therefore, the Trial Court passed a decree of declaration holding that the order dated 26th June, 1995 was illegal and not binding on the appellant. The Trial Court directed the State Government to execute a grant / sale in favour of the appellant. The Trial Court also passed a decree for possession. 5. The Appellate Court has interfered by holding that there was no evidence on record to show that the suit property was owned by the said Devappa and that Devappa had made a bequest of the suit property in favour of the appellant. 6. The submission of the learned Advocate for the appellant is that there was sufficient evidence on record to show that the erstwhile Municipality had agreed to allot the suit property to the said Devappa of the appellant and in fact a sum of Rs.100/- was paid by the said Devappa of the appellant. It is : 4 : submitted that in the year 2001, the plaint was amended by the appellant for claiming a relief in the alternative for seeking the allotment of the suit property in his favour. It is submitted that the Appellate Court has committed an error by holding that the appellant has failed to make election of one plea out of the two alternative pleas raised in the suit. He invited my attention to the observation made by the Trial Court in paragraph No.19 of the Judgment. 7. I have carefully considered the submissions. Paragraph No.19 of the Judgment of the Trial Court reads thus:- "19. It may be stated at the outset, that in his pleadings the Plaintiff originally contended that as his great grand father had purchased the suit property in the year 1942, his great grand father Devappa was the owner of the suit property. He further contends that Devappa had bequeathed this property by executing a will in his favour and therefore he that is the Plaintiff had become the owner of the suit property. IT was in this context that the issue Nos.1 and 3 were framed. However, at the beginning of the arguments itself Advocate R.V. Kulkarni for Plaintiff, submitted that the Plaintiff does not want to continue with this claim, and therefore both Advocates have not argued on these issues. Hence, these issues do not survive." : 5 : 8. Issue Nos.1 and 3 framed by the Trial Court reads thus :- "Issues :- 1. Whether Plaintiff proves that the suit property was originally owned and possessed by his great grand father Devappa Nemappa Nitwe? 3. Does he further proves that by will dated 10/12/56 Devappa has bequeathed the suit property to the Plaintiff and after demise of Devappa the Plaintiff has become the owner and possessor of the suit property?" 9. Thus, going by what is observed by the Trial Court in the said paragraph, the appellant gave up the plea that his great grandfather was the owner of the suit property and that there was a bequest made by his great grandfather in favour of the appellant. 10. Reliance has been placed on certain record showing payment of Rs.100/- by the deceased great grandfather of the appellant. The appellant is claiming that there was an agreement executed by the erstwhile Municipality in favour of the deceased great grandfather of the appellant for allotment of the suit property. Assuming that there was such an agreement, there is nothing on record to show that what were the terms of agreement and whether the sum of Rs.100/- : 6 : constituted the entire consideration. 11. Considering the entire oral and documentary evidence on record, the Appellate Court has disbelieved the case made out by the appellant as regards allotment of the suit property in favour of his great grandfather or the existence of any such agreement. 12. In view of the findings of facts recorded by the Appellate Court, no substantial question of law arises. Second Appeal is accordingly dismissed. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]