1 sa 363.02 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 363 OF 2002 1. Bhaurao S/o Madhavrao Chume and others .. Appellants Versus 1. Moreshwarrao S/o Ramrao Kulkarni Died through L.R.s' Balasaheb Moreshwar Kulkarni and ors. .. Respondents Shri V. C. Solshe, Advocate for Appellants. Shri P. D. Suryawanshi, Advocate for Respondents. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. PER COURT : . This is an appeal by the original defendants. The plaintiff had filed a suit claiming declaration and ownership to the extent of 1/3 share in the suit trees located in land Sy. No. 53/1 and for injunction. The Trial Court decreed the suit. The defendants preferred an appeal. The Appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. The defendants have assailed the said judgment in the 2 sa 363.02 present second appeal. 2. Shri Solshe, the learned counsel for appellants submits that the plaintiff had admitted that in the year 1972 two trees had fallen down and so burden was upon the plaintiff to show that the remaining trees were still standing. According to the learned counsel, plaintiff has miserably failed to prove the same. The learned counsel further submits that new trees are planted by the defendants and in new trees the plaintiff does not have any share. This aspect has not been considered by the Courts below. 3. Per contra, Shri Suryawanshi, the learned counsel for the respondent submits that, the record such as entries in the relevant revenue record shows that the plaintiff has 1/3rd share in the suit trees. The burden was upon the defendants to prove that they had planted the new trees and the trees in which the plaintiff had share did not exist. Both the Courts have concurrently held that the plaintiff has 1/3rd share in the nine mango trees and two tamrind trees. 4. With the assistance of the learned counsel I have gone through the judgments. The plaintiff has come with a positive 3 sa 363.02 case that there were twelve mango trees and two tamrind trees in which the plaintiff had 1/3rd share. The revenue record also substantiated this fact. The plaintiff had also categorically stated that out of twelve mango tress, two tress had fallen down and only ten trees remained. During the pendency of proceedings, one tree was cut down. As such, the Courts have awarded 1/3rd share to the plaintiff in remaining trees. When the defendants came with a positive assertion that the trees which are existing are the onc which they had planted and the earlier trees are not in existence. Thus, heavy burden lay upon the defendants to prove the said factum of plantation of new trees and earlier trees did not exist. Both the Courts on evaluation of evidence oral as well as documentary have held that the defendants have failed to prove the same. 5. The view taken by the Courts below is possible view based on appreciation of evidence. The second appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/May 11