1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.528 Of 2009 Champabai W/o Kaluram Khatod (Vyas), Died, Legal Representative Tulshiram S/o Kaluram Khatod ... Appellant. Versus Dr. Ratanlal s/o Bhagirath Purohit And One Another. ... Respondents. -------- Smt. S.G. Chincholkar, Advocate for the appellant. Shri. V.S. Bedre, Advocate for respondent Nos. 1 and 2. -------- CORAM: R.M. BORDE, J. DATE: 27th JANUARY 2010 PER COURT : 1) Heard learned counsel for the appellant and the respondents. 2 2) This is an appeal filed by the original plaintiff raising exception to the judgment delivered by the District Judge-1 Hingoli in Regular Civil Appeal No.75 of 1993 on 23-9-2008. The plaintiff presented a suit being Regular Civil Suit No.11 of 1979 claiming recovery of possession of suit premises from the defendants. It is contended that the property belonged to one Sitaram Vyas who died on 12-11-1978. He owned the disputed house and open space which plaintiff claims to be her ancestral property. The Gram Panchayat House Number of the suit house is 301. It is contended that the defendant was occupying southern - eastern portion of the suit house whereas the plaintiff was occupying the northern-eastern portion. After demise of Sitaram, the plaintiff called upon the defendant to vacate the suit premise. The defendant agreed to do so by executing an 3 agreement dated 24-11-1979, however, failed to adhere to the assurance. As such the plaintiff was required to present a suit. 3) The defendant appeared and controverted the contentions by filing Written Statement. According to him, the deceased Sitaram died on 12-11-1978 and he was also owner of House No.301. The defendant was residing as a tenant of Sitaram and occupying part of property. The description given by the plaintiff in respect of House No.301 is incorrect. It is his contention that the Village Panchayat Palsi allotted a piece of plot adjacent to the plaintiff's house whereon the defendant No.1 has raised construction and is occupying the same. He has also given the boundaries of the area alloted to him by the Village Panchayat, and said portion is numbered as House No.301/1. According to the 4 defendant, the plaintiff has no concern with the property bearing House No.301/1 occupied by him. It was further contended that the agreement was got executed by the plaintiff by coercing him and the same was executed under duress. 4) The trial Court after recording the evidence of the parties came to the conclusion that the plaintiff has established her case as such passed a decree in her favour on 8-11-1993. The judgment delivered by the trial Court was subjected to challenge in an appeal which was initially decided by the First Appellate Court on 21-1-2002. The defendant preferred a second appeal raising exception to the orders passed by the Courts below being Second Appeal No.437 of 2003. The appeal came up for consideration before this Court on 9-3-2008. After considering rival contentions 5 the second appeal was allowed and matter was remitted back to the First Appellate Court with directions to extend an opportunity to the parties to submit their contentions before the First Appellate Court. The First Appellate Court was also directed to consider the objections raised by the defendant as regards the description of the suit property as well as his objection to the document at Exhibit 28. In her deposition the plaintiff had categorically stated that she does not know the House number allotted by the Gram Panchayat to suit property. She could not give boundaries of the suit house. The alleged agreement Exhibit 28 also does not disclose the boundaries of the property possessed by the defendant. The First Appellate Court in the first instance while dealing with the appeal failed to consider these aspects. Therefore, it was directed to the First 6 Appellate Court to consider the objections and decide the issue. 4) It appears that after remand of the matter to the First Appellate Court, a Purshis was filed by the counsel for the appellant that the plaintiff Champabai is no more and as such her legal representative was brought on record and necessary amendment was carried out in the record of the appeal. The First Appellate Court considered the issue in respect of the identity of the property and recorded a finding that the plaintiff has failed to prove the boundaries of the disputed property. It was also found by the First Appellate Court that in accordance with the provisions of Order VII Rule 3 of the Code of Civil Procedure (Bombay Amendment) it was necessary for the plaintiff to give sketch of the premises and give details in respect of 7 portion claimed by plaintiff. However, the plaintiff has not given any sketch in respect of the property claimed by her. The plaintiff has neither given the correct boundaries nor has placed on record the sketch of the property in respect of which she raised her claim. On the contrary, the defendant has specifically pleaded and proved the boundaries of the area possessed by him. The defendant has also placed on record the Resolution in respect of allotment of the plot, the construction permission, relevant map and thus has led evidence to identify the property in his possession. 5) Considering these aspects, the First Appellate Court ruled against the plaintiff and reversed the judgment and decree passed by the trial Court. The First Appellate Court has properly appreciated the evidence on record 8 placed by the parties and decided the issue. The finding of facts recorded by the First Appellate court on appreciation of the evidence in consonance with the directions issued by this Court while dealing with Second Appeal Second Appeal No.437/2003, need not be disturbed while exercising jurisdiction under section 100 of the Code of Civil Procedure. No substantial question of law involves in this appeal. 6) The Second Appeal No.528 of 2009 is dismissed. (R.M. BORDE, J.) rsl/ sa.528.09