1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 638 OF 2009 Aziz s/o Ibrahim & another APPELLANTS VERSUS Dadabhai s/o Budhan Bhai (Deceased through LRs) & others RESPONDENTS Mr. M.R.Challani, Advocate for the appellants. Mr. S.D. Karkare, Advocate holding for Mrs. A.N. Ansari, Advocate for respondent nos. 1(ii) to 2. Mr. T. Vinod, Advocate for Respondent nos. 3 and 4. ===== CORAM: R.M.BORDE, J. DATE : 1 st October, 2009. PER COURT : 1 This is an appeal by original defendant nos. 1 and 2 raising exception to the judgment and decree passed by the Adhoc Additional District Judge, Aurangabad in Regular Civil Appeal no. 323/2003 decided on 23-8-2004. 2 Plaintiffs instituted suit claiming recovery of possession of an area admeasuring 20 acres and 30 gunthas out of gat no. 133 out of which only 18 acres portion is subject matter of the suit. According to plaintiff, one Fakira was the owner of suit property. He was blind since his 2 childhood and since last 15 to 20 years he was unable to move. He had also become deaf. Deceased Fakira was the uncle of the plaintiffs. Defendants interfered their possession over an area to the extent of 18 acres and 30 gunthas. Defendant no. 1 claims his entitlement in respect of 19 acres and 24 gunthas on the basis of agreement to sell alleged to have been executed by deceased Fakira whereas defendant no. 2 claims his entitlement on the basis of affidavit sworn in by Fakira in his favour on 21-5-1975. According to plaintiffs, both the documents are bogus and sham and brought into existence by taking undue advantage of the helpless condition of Fakira. Plaintiffs as such pray for relief of possession of the property in the hands of defendants. 3 Defendant nos. 1 and 2 presented written statement and controverted the contentions raised by plaintiffs. According to them, the suit is not tenable. They denied the allegations made in the plaint in respect of fraud played by them in securing execution of the documents. According to them, plaintiffs cannot claim as successors of deceased Fakira. According to them, defendant no. 1 was already in possession over an area to the extent of 15 acres and 13 gunthas as tenant. So far as claim of defendant no. 2 is concerned, the same is founded on the 3 affidavit alleged to have been sworn by Fakira on 21-5-1975. Defendants further contend that they are entitled to claim protection of their possession in view of section 53A of Transfer of Property Act. Defendants, thus pray for dismissal of the suit. 4 Plaintiffs lead evidence in order to establish their case, however, defendants did not step into witness box. Trial court, however, after considering the evidence led by the parties was not satisfied as regards the claim put forth by plaintiffs and as such dismissed the suit by judgment and decree dt. 11-9-2003. Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no. 323/2003 at the instance of plaintiffs which came to be heard and disposed of by Adhoc Additional District Judge, Aurangabad who was pleased to allow the same partly in view of judgment and decree passed on 23-8-2004. Claim raised by plaintiffs in respect of possession of an area to the extent of 19 acres and 36 gunthas from defendant no. 1 has been turned down by the first appellate court so also claim for recovery of possession of house from defendant no. 3 has also been turned down. However, so far as claim put forth by plaintiff for possession of 4 acres area out of gat no. 133 from defendant no. 2 is concerned, the same was allowed and the 4 concerned defendants were directed to handover possession of the property. Learned counsel for the appellant has strenuously urged that plaintiff has failed to establish his genealogy and entitlement to succeed to the property left behind by deceased Fakira. It is to be noted that defendant although has disputed entitlement of the plaintiff as successor of Fakira, none of the defendants have stepped into witness box to substantiate their contention. Plaintiff has stepped into witness box and has deposed about his relations with Fakira and has contended that on demise of Fakira, plaintiff being the only successor is entitled to succeed to the property. Finding reached by the courts below as regards entitlement of plaintiffs to maintain suit as successors of Fakira cannot be faulted. It is also urged by learned counsel for the appellants that plaintiff has not specifically described the property involved in the suit and shares held by defendant nos. 1 and 2. In the absence of specific description of the property, plaintiffs are not entitled to secure decree in their favour. On perusal of the judgment of the first appellate court, it appears that defendant no. 1 has claimed his entitlement of 14 acres and 37 gunthas land from southern side of the suit land, as tenant. Remaining land therefore which falls on the northern side and which is in possession of defendants can be specifically earmarked and decree in that regard 5 can be passed. First appellate court has precisely done so and passed decree entitling the plaintiffs to secure possession of 4 acres land from the northern side. It is to be noted that none of the defendants have stepped into witness box to controvert the case put up by plaintiffs. Defendant no. 2 although claims his entitlement on the basis of affidavit alleged to have been sworn by Fakira, the affidavit in question cannot make the defendant entitled to claim title. Plaintiffs are approaching the court seeking possession of the property on the basis of their entitlement as successors of Fakira. The first appellate court has adopted a reasonable view of the matter and passed decree in respect of recovery of possession of 4 acres land. I do not find any infirmity in the judgment recorded by the first appellate court. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa638.09.odt 6