1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1100 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. V.S. Bedre, Advocate for the appellants. Mr. S.S.Deshmukh, Advocate for resp.no. 1. ............................ CORAM : S.V. GANGAPURWALA, J. DATE : 19/10/2010 PER COURT : 1. This is plaintiffs’ Second Appeal. The plaintiffs had filed Suit for possession of 1 Acre 16 Gunthas of land on the ground that the defendants have encroached over that area and also the sale deed executed in favour of the present respondent no. 1 is illegal, null and void. 2. The trial Court dismissed the Suit. The plaintiffs filed Appeal against the said Judgment and decree. The appellate Court also dismissed the Suit, but held that respondent no. 1 is not bonafide purchaser and did not grant relief of possession on the ground that the plaintiffs could not prove their 2 possession earlier and the partition in respect of the share of Balaji amongst the surviving brothers. 3. Mr. Bedre, the learned counsel for the appellants submitted that the Court has given perverse finding regarding the factum of possession. According to him, it was the specific case of the plaintiffs that middle portion of the land S.No. 138/4-A was given to Yeshwant i.e. father of the plaintiffs admeasuring 2 Acres 5 Gunthas. When specific pleading was there and the said factum was proved by oral evidence, the Court below could not have come to the contrary conclusion. Mr. Bedre further submitted that once it is held that respondent no. 1 is not bonafide purchaser and the sale deed is not binding on him, then there was no impediment to grant possession of 1 Acre 16 Gunthas of land. 4. Per contra, Mr. Deshmukh, the learned counsel for respondent no. 1 submitted that the Courts below on appreciation of evidence, have rightly come to the conclusion that the plaintiffs could not prove their previous possession and the partition as claimed by them. They also could not prove that deceased Yeshwant was given middle portion of the property. 5. With the assistance of the learned counsels, I have gone through the Judgments delivered by both the Courts. The appellate Court in para no. 17 of its Judgment has categorically observed that 3 the oral evidence led by the plaintiffs does not substantiate the pleadings. In the pleadings, it was claimed that Yeshwant was given middle share of 2 Acres 5 Gunthas, whereas in the oral evidence during cross examination, the plaintiff was totally confused and stated that the plaintiff is given share to the east of share of Narmadabai and Narmadabai’s share was also towards the east of share of defendant nos. 5 to 7. So also, defendant nos. 4 to 7 were given share towards east side of share of defendant nos. 2 to 4, which shows that in the evidence, the plaintiff claim to be on the extreme east of the said land. The lower appellate Court also on evaluation of evidence, has come to the conclusion that the plaintiffs could not prove partition and their previous possession. These are the findings of facts. 6. No substantial question of law arises. The present Second Appeal is dismissed with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survives and as such disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 1100.04