1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 402 /1998 (Narayan Laxman Bhoyar vs. Mahadeorao Khumbhare (Died :Through LRs: Smt. Mainabai wd/o Mahadeorao Kumbhare and others ) .................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr Rohit Sharma, Adv.h/for Mr Anand Parchure, Adv.for appellant Mr Nirbhay Chouhan Adv.h/for Mr M P Sagdeo, Adv.for Respondents CORAM : SMT.VASANTI A. NAIK, J. DATED : 12th October, 2010. Heard Mr Rohit Sharma, the learned counsel for the appellant. The appellant is the original defendant. The suit was filed by the respondent/plaintiff for removal of encroachment shown by letters 'A'B'C'D' in the plaint map. The plaintiff pleaded that he had purchased the wada along with suit site from one Wamanrao on 14.11.1972. It was the case of the plaintiff that the defendant was the servant of Wamanrao and was residing in one Kotha on the said wada as a licensee. That the plaintiff issued notice to the defendant for vacating the suit premises, however, the same were not vacated and hence Regular Civil Suit No. 266/1972 was instituted by the plaintiff. The plaintiff filed the Regular Civil Suit No. 266 /1972 against the defendant and Wamanrao for possession of the Kotha. The suit was decreed and the appeal filed by 2 the defendant against the judgment passed by the trial Court was dismissed with costs. The same was the fate of the Second Appeal filed by the defendant. Thereafter, it is the case of the plaintiff that he filed execution proceedings and the plaintiff took the possession of the Kotha along with the suit site from the defendant on 13.12.1980. It is pleaded by the plaintiff that, again, the defendant took the forcible possession of the suit site. The defendant filed the written statement and denied the claim of the plaintiff. He denied that the plaintiff was the owner of the Wada or suit space. He stated that he was in service of Wamanrao and he had purchased the suit site from Wamanrao on 5.4.1965 and since then he was in possession of the same. He stated that he did not encroach upon the suit space at any point of time. The defendant sought for dismissal of the suit. The trial Court, on an appreciation of the evidence on record, came to a conclusion that the plaintiff was not entitled to possession of the suit site. The trial Court held that the issue, whether the plaintiff purchased the Wada and the suit site shown in the plaint map and whether the defendant took forcible possession of the same, did not arise for consideration in the suit. The trial Court held that in the previous suits filed by the plaintiff, the Courts had held that the plaintiff was the owner of the property and in pursuance of the decree 3 passed by the Courts in the previous suit, the plaintiff was also put in possession of the suit property. The trial Court held that the plaintiff ought not have filed the present suit as his previous suit bearing Regular Civil Suit No.103/1985 was decreed by the Court and the issues in the present suit and RCS No.103/1985 were almost identical. The trial Court held that the plaintiff was unnecessarily multiplying the litigation. The first Appellate Court on a re- appreciation of the evidence, reversed the findings recorded by the trial Court and held that the plaintiff had succeeded in proving that he was the owner of the Wada and the suit site. The first Appellate Court held that the trial Court committed an error in holding that the defendant did not take forcible possession of the suit site, after the possession was handed over to the plaintiff in the execution proceedings filed in pursuance of the decree passed in the previous suit. The first Appellate Court held that the trial Court was not justified in holding that the issue regarding title of the plaintiff and the defendant did not arise for consideration. The first Appellate Court held that the defendant had again encroached upon the suit property after the possession was handed over to the plaintiff in pursuance of the decree. The findings recorded by the first Appellate Court are pure findings of facts based on proper 4 appreciation of the material evidence on record. In fact, the reasons recorded by the trial Court in dismissing the suit of the plaintiff were absolutely incorrect and the first Appellate Court, after recording cogent reasons, reversed the findings recorded by the trial Court. The first Appellate Court held that the plaintiff had succeeded in previous suit and he had proved his ownership over the suit site. The first Appellate Court was justified in holding that the defendant had failed to prove his ownership to the suit property as he had not examined himself or any witnesses. The first Appellate Court held that the plaintiff had prove his case by examining himself and also examining one Gajanan who had drawn the plaint map. The first Appellate Court held that the sale deed executed by Wamanrao in favour of the plaintiff was also proved by him. The first Appellate Court observed that the defendant had admitted the previous litigation between the parties and on the basis of the evidence on record, the defendant was liable to deliver the possession of the suit property to the plaintiff. Since the findings recorded by the first Appellate Court are based on a proper appreciation of the evidence on record and since they do not give any rise to any substantial question of law, the Second Appeal is dismissed with no order as to costs. JUDGE sahare