1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.6790 OF 2009 IN SECOND APPEAL ST. NO.6464 OF 2009 Suresh s/o Laxman Mogarkar, deceased through his L.Rs. & others Applicants Versus Madhav s/o Pralhad Jadhav, deceased through his L.Rs. & others Respondents Mr.S.S.Choudhary, advocate for applicants. Mr.K.K.Kulkarni, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: This is an application for bringing on record legal representatives of deceased Respondent No.3 – Mohan Madhav Jadhav and for condonation of delay of 307 days caused in presenting application for said purpose. Heard learned Counsel for respective parties. For the reasons stated in the application, application is allowed. Legal representatives of deceased Respondent No.3 Mohan Madhav Jadhav are permitted to be brought on record. Delay of 307 days occurred in presenting the application stands condoned. Abetment, if any, stands set aside. Record be amended accordingly. (R.M.BORDE) JUDGE ******* adb/sast646409 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.6787 OF 2009 IN SECOND APPEAL ST. NO.6464 OF 2009 Suresh s/o Laxman Mogarkar, deceased through his L.Rs. & others Applicants Versus Madhav s/o Pralhad Jadhav, deceased through his L.Rs. & others Respondents Mr.S.S.Choudhary, advocate for applicants. Mr.K.K.Kulkarni, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: This is an application for bringing on record legal representatives of deceased Respondent No.2 – Bharat Madhav Jadhav and for condonation of delay of 1497 days caused in presenting application for said purpose. Heard learned Counsel for respective parties. For the reasons stated in the application, application is allowed. Legal representatives of deceased Respondent No.2 Bharat Madhav Jadhav are permitted to be brought on record. Delay of 1497 days occurred in presenting the application stands condoned. Abetment, if any, stands set aside. Record be amended accordingly. (R.M.BORDE) JUDGE ******* adb/sast646409 3 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.6789 OF 2009 IN SECOND APPEAL ST. NO.6464 OF 2009 Suresh s/o Laxman Mogarkar, deceased through his L.Rs. & others Applicants Versus Madhav s/o Pralhad Jadhav, deceased through his L.Rs. & others Respondents Mr.S.S.Choudhary, advocate for applicants. Mr.K.K.Kulkarni, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: This is an application for bringing on record legal representatives of deceased Respondent No.4 – Dadarao s/o Pralhad Jadhav and for condonation of delay of 470 days caused in presenting application for said purpose. Heard learned Counsel for respective parties. For the reasons stated in the application, application is allowed. Legal representatives of deceased Respondent No.4 Dadarai s/o Pralhad Jadhav are permitted to be brought on record. Delay of 470 days occurred in presenting the application stands condoned. Abetment, if any, stands set aside. Record be amended accordingly. (R.M.BORDE) JUDGE ******* adb/sast646409 4 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.6778 OF 2009 IN SECOND APPEAL ST. NO.6464 OF 2009 Suresh s/o Laxman Mogarkar, deceased through his L.Rs. & others Applicants Versus Madhav s/o Pralhad Jadhav, deceased through his L.Rs. & others Respondents Mr.S.S.Choudhary, advocate for applicants. Mr.K.K.Kulkarni, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: This is an application for bringing on record legal representatives of deceased Respondent No.1 – Madhav s/o Pralhad Jadhav and for condonation of delay of 1259 days caused in presenting application for said purpose. Heard learned Counsel for respective parties. For the reasons stated in the application, application is allowed. Legal representatives of deceased Respondent No.1 Madhav s/o Pralhad Jadhav are permitted to be brought on record. Delay of 1259 days occurred in presenting the application stands condoned. Abetment, if any, stands set aside. Record be amended accordingly. (R.M.BORDE) JUDGE ******* adb/sast646409 5 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL ST. NO.6464 OF 2009 Suresh s/o Laxman Mogarkar, deceased through his L.Rs. & others Appellants Versus Madhav s/o Pralhad Jadhav, deceased through his L.Rs. & others Respondents Mr.S.S.Choudhary, advocate for appellants. Mr.K.K.Kulkarni, advocate for Respondents. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: 1 Original defendants no.1 to 3 are raising exception to the concurrent judgments recorded by the Courts below. 2 Respondent No.1 – original plaintiff instituted suit claiming declaration of ownership and perpetual injunction in respect of Municipal House No.25/2 (New No.438) bearing City Survey Nos.243, 244 and 245, situate at Tuljapur and also prayed for recovery of possession of the suit house. 3 It is the contention of plaintiff that the property belongs to joint family and defendants no.1 to 3 are real brothers inter se. They approached plaintiff for shelter around the year 1972 and pursuant to the request made by defendants, plaintiff permitted them to occupy the open space owned by 6 them, which is shown in the map attached to the plaint. It is contended that during the survey conducted at Tuljapur during the year 1973-74, defendants, in collusion with city survey authorities, got the suit plot entered in their name and thereafter started construction on the said plot. Plaintiff raised objection to Municipal Council, Tuljapur, however, the Municipal Council, directed the parties to approach the Civil Court and got their rights decided. Plaintiff, as such, presented the suit claiming relief, as stated above. 4 Defendants appeared and controverted the contentions raised by plaintiff by filing written statement. According to them, suit property is their ancestral property. According to them, in fact plaintiff has occupied some portion of the property belonging to them. He had approached defendants for permitting him to reside in some portion of the suit plot and considering his request, he was permitted to occupy some portion. 5 Initially, after recording evidence in the matter, trial Court granted decree in favour of plaintiff by judgment and decree dated 25.06.1985. Defendants No.1 to 3 challenged the judgment by filing Regular Civil Appeal No.268/1985. Appeal came to be allowed on 23.01.1995 and the matter was remitted back to the trial Court for consideration afresh. Accordingly, trial Court reopened the case. In pursuance to application Exhibit-98 presented by the plaintiff, Engineer attached to Municipal Council, Tuljapur as well as City Survey Officer, Tuljapur, were directed to conduct a joint survey of the house and accordingly joint survey was conducted and report Exhibit-112 was tendered. Plaintiff examined one witness namely Ashok Sangale, Engineer attached to Municipal Council and filed evidence close pursis. In rebuttal, defendants also led evidence of defendant no.2 Subhash Mogarkar and presented evidence close pursis at Exhibit-138. After recording 7 evidence of the parties, trial Court has recorded a finding that plaintiff has established his case and as such granted decree in his favour. The judgment and decree passed by the trial Court was subject matter of challenge in Regular Civil Appeal No.62/2000, which was decided by Principal District Judge, Osmanabad, on 15.01.2009, who was pleased to dismiss same. 6 I have perused judgments recorded by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 7 The trial Court has recorded a finding of fact in respect of proof of ownership of the plaintiff in relation to the suit property, whereas, it has also been recorded by the trial Court that defendants have failed to establish their case. The Courts below have recorded a finding that the plaintiff has established that city survey nos.243, 244 and 245 together form the suit property and city survey no.245 is part and parcel of house no.438 owned by plaintiff. The Courts below have recorded findings of facts considering the evidence in the form of survey conducted by the officials as well as considering oral and documentary evidence led by plaintiffs. Defendants have mainly relied upon a `sanad’ issued in favour of their grand father. However, trial Court has observed in the judgment that area written in the `sanad’ does not tally with the area of suit house. It is also observed that there appears overwriting on the `sanad’ presented at Exhibit-39. The surname of person, in whose favour `sanad’ appears to have been issued, also differs. Name of one `Laxman Maruti Warurkar’ is recorded in the `sanad’, whereas, surname of defendants is `Mogarkar’. The trial Court as well as first appellate Court, therefore, have rightly refused to place reliance on the documentary evidence in the form of `sanad’ and oral evidence adduced by defendants. Defendants, although contended that the 8 property was standing in the name of their grand father, have failed to produce evidence in the form of tax receipts to substantiate their contentions. There is also no pleading in the written statement presented by defendants that the property in fact stood in the name of their grand father and further that surname of their grand father was incorrectly mentioned in the `sanad’. In the absence of any specific pleading in that behalf, Courts below were, therefore, justified in rejecting evidence led by defendants in that regard. 8 In this view of the matter, I am of the opinion that the Courts below have took reasonable view of the matter. The findings of facts recorded by the Courts below, based on appreciation of evidence, need not be disturbed while dealing with Second Appeal in exercise of powers conferred under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. 9 Appeal, therefore, stands dismissed. Civil Application No.6784 of 2009 does not survive and stands disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sast646409