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.977 OF 2007. APPEAL NO.977 OF 2007. APPEAL NO.977 OF 2007. Shri Sitaram Gopal Chougule & Ors. ...Appellants Versus. Shri Gajanan H. Choulkar & Ors. ...Respondents Shri G.S.Godbole for the Appellants. Shri S.G.Karandikar for Respondent No.1. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 07th February, 2008. : 07th February, 2008. : 07th February, 2008. P.C.: P.C.: P.C.: 1. Heard learned advocates appearing for the parties. The Second Appeal is preferred by the original defendants in a suit filed by the respondents. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the trial Court. One Gajanan was the grandfather of the 1st and 2nd plaintiffs. The 2nd defendant Purshottam and the 3rd defendant Moreshwar are the sons of one Vinayak. Gajanan and Vinayak were the real brothers. According to the case of the plaintiffs, the said Gajanan and Vinayak were holding ancestral property bearing survey No.112/1 situated at Shrivardhan, Taluka Shrivardhan, District Raigad. In 1943 there was a partition made between the said Gajanan and Vinayak. In the said partition the property bearing survey No.112/1 was vertically divided into two shares. One half share was allotted to the said Gajanan. The other half allotted : 2 : 2 : 2 : to the share of the said Vinayak was numbered as Survey No.112/4. In partition, one house bearing house No.791 was allotted to the said Gajanan. It is the case of the original plaintiffs that the said house No.791 falls in survey No.112/4. It is the case of the plaintiffs that though the land bearing survey No.112/4 was allotted to the share of the father of the 2nd and 3rd defendants, a portion of the said land abbuting house No.791 was in possession of the said Gajanan as the owner thereof. It is alleged that the said Gajanan was the owner of the open land abutting the plinth of the house No.791 on the northern side upto the land bearing survey No.112/1 held by the said Gajanan. The description of the said open space abutting the house No.791 is in paragraph No.3 of the said Regular Civil Suit No.04 of 1987 filed by the plaintiffs. It is contended that the said open space described in paragraph No.3 was in possession of Gajanan on the basis of the partition of the year 1943. 2. On 20th August, 1986 the 2nd and 3rd defendants sold land bearing survey No.112/4 as well as the house thereon fallen to their share in the partition in favour of the 1st defendant. As the first defendant threatened to obstruct the possession of the open space held by the plaintiffs, a suit for declaration and injunction was filed by the plaintiffs. The plaintiffs claimed declaration of ownership in respect of open land on : 3 : 3 : 3 : eastern, western and northern side of the house No.791 more particularly described in paragraph Nos.3 and 4 of the plaint. A prayer for perpetual injunction was made in the suit. 3. The suit was contested by the defendants. The defendants contested the claim made by the plaintiffs and it was contended that after the partition of the year 1943, no part of the land bearing survey No.112/4 was of the ownership of the plaintiffs. There were separate written statements filed by the 1st defendant as well as defendant Nos.2 and 3 raising similar contentions. 4. The suit was decreed by the trial Court by granting relief of declaration and injunction in favour of the plaintiffs. The appeal preferred by the defendants has been dismissed by the District Court and therefore the present Second Appeal has been preferred. 5. It must be stated here that the 1st defendant in Regular Civil Suit No.04 of 1987 which is the subject matter of the Second Appeal (1st appellant) filed Regular Civil Suit No.08 of 1988 in the trial Court against the respondents in this appeal (plaintiffs in Regular Civil Suit No.04 of 1987). In the said suit the 1st appellant herein claimed that the suit property : 4 : 4 : 4 : bearing survey No.112/4 was purchased by him from the sons of Vinayak (Purshottam and Moreshwar) which was allotted to the share of Vinayak in the partition. It was contended that the defendants in the said suit No.08 of 1988 (plaintiffs in Regular Civil Suit No.04 of 1987) had allegedly constructed a plinth in the year 1985 on survey No.112/4 and have laid a water pipeline through the Survey No.112, Hissa No.4. The said suit bearing Regular Civil Suit No.08 of 1988 was filed by the 1st appellant for removal of the said encroachment. The said suit was contested by the plaintiffs in Regular Civil Suit No.04 of 1987 by asserting their ownership over the suit property subject matter of Regular Civil Suit No.04 of 1987. The said Regular Civil Suit No.08 of 1988 was dismissed by the trial Court. An appeal was preferred by the 1st appellant for challenging the said decree. The said appeal has been dismissed by a common judgment alongwith appeal preferred by the appellants against the decree passed in Regular Civil Suit No.04 of 1987. However, there is no challenge to the decree passed in Regular Civil Suit No.08 of 1988. 6. The learned advocate appearing for the appellants has invited my attention to the Sale Deed dated 20th August, 1986 executed in favour of the 1st appellant (1st defendant) by the 2nd and 3rd defendants in the Regular Civil Suit No.04 of 1987. He submitted : 5 : 5 : 5 : that the entire open land bearing survey No.112/4 except the house property has been purchased by the 1st defendant. He pointed out that the said Sale Deed in favour of the 1st defendant has not been challenged by the plaintiffs. He submitted that as in the partition of the year 1943, the entire open land bearing survey No.112/4 came to the share of the 2nd and 3rd defendants, no declaration could have been granted by the Courts below of ownership in respect of open land in favour of the original plaintiffs. He submitted that the Sale Deed recites that an area of 24.25 Are bearing survey No.112/4 was handed over by the 2nd and 3rd defendants out of survey No.112/4 to the 1st defendant. He submitted that there is nothing on record to show that in the partition of the year 1943 the suit property i.e the open land was allotted to the share of Gajanan. 7. I have given careful consideration to the submissions. It must be stated here that a suit for removal of encroachment (Regular Civil Suit NO.08 of 1988) filed by the 1st appellant (1st defendant in Regular Civil Suit No.04 of 1987) has been dismissed in which allegation was made of encroachment on the same property against the respondents. The appeal preferred by the first appellant against the said decree was dismissed by the impugned judgment of the appellate Court. However, no separate appeal has been preferred : 6 : 6 : 6 : by the 1st appellant for challenging the decree in Regular Civil Suit No.08 of 1988. 8. The perusal of the judgments of the Courts below show that the Courts have appreciated the oral and documentary evidence on record. The Courts have referred to the Sale Deed executed by the 2nd and 3rd defendants in favour of the 1st defendant in which description of the open land out of survey No.112/4 is mentioned as a barren land. It was held that the Sale Deed shows that house in possession of the plaintiffs was not sold under the said Sale Deed to the 1st defendant by the 2nd and 3rd defendants. The Courts below and especially the appellate Court have considered the important circumstance that the house was not sold to the 1st defendant and the relief which is claimed in the present suit is in respect of the open portion of the land appurtenant to the said house. 9. The Courts below on the basis of evidence found that there were plantations made of various trees on the suit land which was abutting the house and considering the description of the land sold to the defendant in the Sale Deed, it was obvious that the suit land having plantations was not sold to the 1st defendant under the Sale Deed. The description of the land sold to the 1st defendant under the Sale Deed shows that what was sold : 7 : 7 : 7 : was a barren land. 10. It must be stated here that in Regular Civil Suit No.08 of 1988 a finding has been recorded that 1st defendant failed to establish that the courtyard of the house of the plaintiffs in the Regular Civil Suit No.04 of 1987 was sold to the 1st defendant by Sale Deed executed by 2nd and 3rd defendants. 11. Therefore, there is a decree of declaration and ownership and injunction passed by the Courts below in in favour of the plaintiffs. 12. In view of concurrent findings of fact, substantial question of law does not arise. There is no merit in the appeal and the same is accordingly dismissed with no orders as to costs. Judge. Judge. Judge.