(1) SA. 93.1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 93 OF 1992 Bhaguji Tukaram Raut, since deceased per LRs. Sunderrao Bhaguji Raut, aged 45 years, Occu.: Agriculture, R/o Sowandalgaon, Taluka : Ambad, District Jalna .. Appellant VERSUS Baburao Gunaji Raut, Aged : 35 years, Occu.: Agri., R/o : Sowandalgaon, Taluka : Ambad, District : Jalna .. Respondent Mr. Satyajit S. Bora, Advocate h/f. Mr. S.C. Bora, Advocate for the appellant None present for the respondent though served ... CORAM : A.V. NIRGUDE, J. DATED : 8TH JANUARY, 2010 ORAL ORDER:- 1] This second appeal was admitted on 21.2.1992 but at that time, the Court did not locate any substantial question of law involved in the appeal. On perusal of the judgments below, and the depositions of the witnesses and the documents filed by the parties in support of their case in the lower Court, I came to a conclusion that there is hardly any substantial question of law involved in this case. (2) SA. 93.1992 However, since the findings of the Courts below are not concurrent, I would consider the merits of the case and decide the appeal. 2] The respondent was plaintiff in Regular Civil Suit no. 224 of 1980. He filed his suit on following assertions:- . He said that the agricultural land situated at Sowandalgaon, Tq. Ambad, Dist. Jalna originally belonged to the appellant/defendant. The appellant then sold it to the respondent vide registered sale deed dated 8.12.1967 for a price of Rs.4000/-. The respondent was put in possession of the suit land but in 1973-1974, due to scarcity problem the respondent left the village in search of livelihood and taking advantage of his absence the appellant took forcible possession of the suit land. After the respondent came back, he demanded possession and when he was refused possession, the suit was filed for recovery of possession. The appellant took up a rather weird stand. He said he did not sell the suit land to the respondent. He denied having executed the sale deed of 1967 in favour of the respondent. He then denied that he took possession of the land in 1973-1974 but he said quite positively that his son Sunder on 20.1.1970 purchased from the respondent the southern half portion of the suit land and since then he had been cultivating the same. He said the northern (3) SA. 93.1992 portion of the suit land is neither in his possession nor his son's possession nor the respondent's possession. In short he denied that he is in possession of the suit land and sought dismissal of the suit. The learned Judge of the trial Court framed issues, recorded depositions and took documents on record, however, he dismissed the suit holding that the respondent neither proved his title nor proved the factum of possession in 1973. The learned Judge of the trial Court even held that the parties did not even prove the sale deed of 1970 which the respondent allegedly executed in favour of the appellant's son. The matter went in appeal and this time, it seems, the learned Judge of the first appellate Court, handled the case quite diligently. He held that the respondent had duly proved his title as he could succeed in proving the sale deed of 1967 through the deposition of the attesting witness. The learned Judge of the first appellate Court also held that in view of one single entry in the column of cultivation in the name of the appellant in the record of rights of the suit land, it was amply proved that the appellant had taken possession of the suit land during that year and had cultivated the same. In other words, he held that the respondent proved his dispossession at the hands of the appellant. The learned Judge of the first (4) SA. 93.1992 appellate Court also held and rightly so, that the appellant duly proved the sale deed of 1970 in favour of his son Sunder. In view of this, the learned Judge of the first appellate Court rightly came to a conclusion that the respondent lawfully sold southern half portion of the suit land to the third party and so, he was not entitled to possession of the same from the appellant or his legal heirs. However, the learned Judge upheld the case of the respondent that the appellant had dispossessed him from the northern portion of the suit land. 3] The parties and their Advocates got little confused because of the peculiarity of the facts of the case specially the fact that the appellant could prove that the respondent had sold southern half portion of the suit land way back in 1970 to the defendant's son Sunder. They thought that since half of the suit land was in possession of third party the suit was bad for non-joinder of the appellant's son Sunder. Indeed this was a misconception and the learned Judge of the first appellate Court rightly brushed it aside. It so happened that during the pendency of the litigation, the original appellant died and his son Sunder was impleaded as his legal representative. Thus ultimately, Sunder became party to the suit but not in his personal capacity. Needless to say that this (5) SA. 93.1992 suit and the decree passed by the Court would not affect his title of the southern half portion of the suit land but since his predecessor -the original appellant- could not prove his title to the northern half portion of the suit land. He would fail in this appeal. The Second Appeal stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp