1 S.A.1322.05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1322 OF 2005 WITH CIVIL APPLICATION NO. 8374 OF 2005 1. Smt. Padma W/o Bhaskar Paturkar Age : About 69 years,Occup.: Household Wife, R/o Nas Galli, Aurangabad. And another ...APPLELLANTS. VERSUS 1. Pratibha W/o Dinkar Paturkar Age : 55 years, Occup.: Household, R/o Nehru Road, Jalna (Died) Through her L.Rs. ...RESPONDENTS. ... Shri.V.I,Thole,Advocate for Appellants. Miss.B.M.Kathar,Advocate holding for Shri.P.F.Patni,Advocate for Respondent No.1-D ... CORAM: SHRIHARI P.DAVARE, J. DATE : 28TH FEBRUARY, 2011. PER COURT : 1. Heard Mr.V.I.Thole,learned counsel for appellants and Miss Kathar, holding for Mr.Patni, learned counsel for respondent No.1-D. 2. This is Second Appeal preferred by original 2 S.A.1322.05 defendants challenging the judgment and decree dated 11.04.2005, passed by Ad-hoc Additional District Judge-4, Aurangabad, in Regular Civil Appeal No. 38 of 2004, thereby dismissing appeal of the appellants-defendants and confirming the judgment and decree rendered by Civil Judge Senior Division, Aurangabad, in Regular Civil Suit NO.369 of 1991, on 06.01.2004. Accordingly, there are concurrent findings against appellants- original defendants. 3. The parties herein, are referred to as per their original status, as plaintiffs and defendants. 4. The deceased-original plaintiff, namely, Pratibha W/o Dinkar Paturkar, filed suit against defendants, namely, Smt. Padma Bhaskar Paturkar and Kum. Uma D/o Bhaskarrao Paturkar for perpetual injunction restraining the defendants from interfering or obstructing her peaceful possession over the suit property bearing Municipal House No. 3 S.A.1322.05 3-6-48 situated at Nasagalli, Aurangabad. Husband of deceased Pratibha, namely, Dinkar was real brother of Bhaskar i.e. husband of defendant No.1, namely, Padma. They purchased house No. 3-6-48 to the extent of ½ share each respectively, in the name of their wives, in the year 1974. Accordingly, eastern ½ portion of the suit house was bought in the name of plaintiff, namely, Pratibha and remaining ½ portion of western side of the suit house came in the name of Smt. Padma i.e. defendant No.1. 5. Admittedly, original plaintiff Prtibha was residing along with her family at Jalna and her husband Dinkar was doing business, there. Husband of defendant No.1, namely, Bhaskar decided to construct house on the area purchased in the name of his wife, namely, Padma. However, portion of the suit property in the name of Padma was open land, which required more expenses for construction, but in respect of the portion in the name of plaintiff Pratibha, the expenses would be 4 S.A.1322.05 less because of existence of some wall structure. Therefore, Bhaskar constructed house on the portion of original plaintiff, namely Pratibha. He died in the year 1983, and thereafter, exchange deed was executed between the parties in the year 1988. Accordingly, eastern portion of the suit house was transferred in the name of Padma, whereas western portion of the house was transferred in the name of original plaintiff Prathiba, since they had cordial relations with each other and the said sale deeds were registered on 14.09.1988 and the suit property was vested in the name of plaintiff,and since then, the plaintiff was in possession thereof. 6. It is alleged that a tin shed standing in the suit property, in possession of the plaintiff, was removed by the defendants and in spite of the said sale deed defendants caused obstruction to the plaintiff from exercising her right on the suit property. Hence, plaintiff Prathiba filed suit against the defendants namely Smt. Padma and 5 S.A.1322.05 Ku. Uma. For perpetual injunction, as efforts to resolve the dispute amicably had failed. 7. The crux of the matter is in respect of the possession over the suit property and the trial Court framed issue in that respect and same was answered in favour of plaintiff. It is observed by the trial Court that plaintiff succeeded to prove the possession over the suit property, being owner thereof and plaintiff is in lawful possession over the suit property since the date of sale deed dated 14.09.1988 and defendant caused obstruction thereon. Consequently, the trial Court granted injunction in favour of the plaintiff, restraining the defendants as prayed for. 8. Being aggrieved by the said Judgment and decree, defendants preferred Appeal No.38 of 2004 as mentioned herein above, however, the said Appeal came to be dismissed by Ad-hoc Additional District Judge-4 Aurangabad. The First Appellate Court also observed that, “ the evidence shows 6 S.A.1322.05 that, in the year 1974, the eastern part of the plot was purchased in the name of the plaintiff from one Mr. Agrawal. Subsequently, at the instance of defendant No.1 and her husband that plot was given to them and they constructed house thereon and started living there. It is further clear that before the construction, an agreement was reached between the parties that they would exchange the properties. Accordingly, sale deeds were executed in the year 1988 that of the eastern half in favour of the defendants and the western half portion i.e. suit property came in favour of the plaintiff, which was in confirmation of the said agreement of exchange. Accordingly, the title of plaintiff and her possession over the suit property is established. 9. It is settled principle that possession follows title. The trial Court arrived at conclusion that plaintiff is in possession of the suit property, which was confirmed by the First Appellate Court. Having regard to the material on 7 S.A.1322.05 record, there is no necessity to interfere in the findings of both Courts below, in the present Second Appeal. 10. In the result, no substantial question of law could be formulated. Present Second Appeal lacks merits, and therefore, same stands dismissed. 11. In the light of dismissal of Second Appeal, nothing survives for consideration in the Civil Application, and hence same stands disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK