ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 980 OF 2007 APPEAL NO. 980 OF 2007 APPEAL NO. 980 OF 2007 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 9 OF 2008 APPLICATION NO. 9 OF 2008 APPLICATION NO. 9 OF 2008 Yashwant Gopal Sohoni ...Appellant. Vs. Sujit Shripad Chavan ...Respondent. Mr.Shailendra Kanetkar i/by Mr.G.S.Godbole for the Appellant. Mr.B.B. Madekar i/by M/s. Madekar & Co. for for the Respondents. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 2nd May, 2008 : 2nd May, 2008 : 2nd May, 2008 ( 2 ) P.C. P.C. P.C. . This is original Plaintiffs’ Second Appeal. By order dated 07/08/1998, the Trial Court had decreed the suit and passed the order which is as under:- "1. Suit is decreed with costs. 2. It is hereby declared that defendant is having no right to use latrine and wall situated in C.T.S.No. 828. 3. It is also hereby declared that defendant is only having right to recover rent to the extent of Rs.1.50 p.a.from the Plaintiff in respect of C.T.S. No.829, wherein plaintiff is permanent tenant. 4. Decree be drawn up accordingly." 2. The Appellate court on appeal filed by the Defendant however, reversed the same by allowing the ( 3 ) said Appeal, principally on the ground that the plaintiff failed to produced the sale-deed of his own title. Those paras in which such references are made are para 12,14, in which it is observed that:- "12. It was very surprising that irrespective of the claim set up by the plaintiff in respect of his own title, he did not bother in produce the sale-deed which he got executed from M/s.Parchure." 14. Though he has relied on the sale deed which Raste had executed in favour of the defendant and though there are recitals that Raste had said his right of access, his right of enjoyment to the toilet and his right of fetching water from the wall in C.T.S. No.828, but he did not produce any document by which he can raise his own claim.. . No document has been produced about the ownership of plaintiff, yet the trial court has ventured to pass the decree in ( 4 ) his favour in respect of C.T.S. No.829. Assuming that the construction was made by Parchure and now it is sold to the plaintiff, on the basis of certain entries made in Survey record but question still remains whether possession was handed over to the plaintiff." 3. Apart from this, there is a Civil Application taken out by the Appellant. This is dated 18/12/2007 to bring on record the same sale-deed dated 15/05/1986. 4. The Respondents though resisted the said contention in Second Appeal, yet not disputed the existence of the said sale-deed and or its contents. Therefore, in the interest of justice and considering the averments made, I am inclined to grant the Civil Application in terms of prayer clause (a). Now as the sale deed in question is taken on record, it is necessary for the first appellate court to re-consider the reasoning, surrounding the same. ( 5 ) 5. Taking all this into account and in view of the above reasoning the impugned judgment dated 31st July, 2007 passed by the District Judge, Satara is quashed and set aside. The matter is remanded back for fresh hearing. Parties should appear on 16th June, 2008 before the District Judge, Satara. The learned District Judge shall dispose of this Appeal within three months thereafter by giving opportunity to both the parties, by considering the effect of proceedings in question in the matter. 6. The appeal as well as the Civil Application No.9 of 2008 are accordingly, allowed in the above terms. [ANOOP [ANOOP [ANOOP V. MOHTA, J.] V. MOHTA, J.] V. MOHTA, J.]