1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APEPAL NO.422/2010 HARIRAM TEJRAO GUDADHE ..VS.. SHANKAR RAUT & ORS Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 6 /10 / 2010 Heard Shri Darda, the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the plaintiff was the absolute owner of the suit property. The plaintiff pleaded that the defendant had wrongly encroached upon the suit property which admeasured 10 R. The plaintiff sought the possession of the suit property from the defendants. The plaintiff pleaded that in the year 1984, the father of the defendants no.1 and 2 forcibly took the signature of the plaintiff on a stamp paper and prepared a kabja patra and also took forcible possession of the suit property. The defendants, according to the plaintiff refused to hand over the possession of the suit property to the plaintiff, inspite of request and hence the suit for declaration and possession was filed. The defendants denied the claim of the plaintiff and pleaded that the father of the defendants no.1 and 2 was a tenant of the suit field and the plaintiff had willingly executed the kabja patra in their favour and in view of the kabja patra, the plaintiff agreed to sale the suit field to the defendants for a 2 consideration of Rs.5500/-. It was pleaded by the defendants that the plaintiff had agreed to execute the sale deed after the suit land was released from the provisions of Urban Land Ceiling Act. The defendants pleaded that the father of the defendant no.1 & 2 expired and thereafter, the plaintiff failed to execute the sale deed of the suit property in favour of the defendants. According to the defendants, thy came in possession of the suit property as the sons of Shivaji. It was pleaded by the defendants that they were still ready and willing to perform their part of the contract and hence the suit field by the plaintiff was liable to be dismissed. The trial court on an appreciation of the evidence on record held that the plaintiff had succeeded in proving that the defendants had encroached upon the field admeasuring 10 R. The trial court, held that the defendants had not succeeded in proving that the kabja patra was nothing but an agreement to sell the property to the father of the defendants no1. and 2. The court held that the plaintiff was entitled for declaration and possession as sought. The first appellate court on a re-appreciation of the evidence on record, held that the kabja patra dated 30.4.1984 was not null and void and the defendants have succeeded in proving that the kabja patra was an agreement to sell the suit property to the father of the defendant no.1 and 2. The first appellate court confirmed the finding of the trial court that the civil court had jurisdiction to decide the suit. The first appellate 3 court held that the defendant had succeeded in proving that they were ready and willing to perform their part of contract and get a sale deed executed. The first appellate court observed that if the father of the defendant no.1 and 2 had encroached upon the suit land in the year 1984, as pleaded by the plaintiff, the plaintiffs would have certainly initiated action against the father of the defendant no.1 and 2 and it was difficult to believe that the plaintiffs remained mum for a period of 10 years. The inaction on the part of the plaintiffs to take any action against the defendants, according to the first appellate court, showed that plaintiff had executed the agreement of sale in favour of the father of the defendant no.1 and 2. Since the sale deed was to be executed only after getting the land released from the provisions of the Ceiling Act and there was no date of execution of the sale deed mentioned in the kabja patra, , the first appellate court held that the plaintiff could not have sought possession of the suit property as he had agreed to sell the same to the defendant's father by the kabja patra dated 30.4.1984. The findings recorded by the first appellate court are pure findings of facts, based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The second appeal, therefore, fails and is dismissed with no order as to costs. JUDGE SMP.