( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 286 OF 1990 WITH CIVIL APPLICATION NO. 3016 OF 1990 1. Ganpat Ganyaba Wankhede .. Appellants [original 2. Kishanrao Nagorao Maske plaintiffs] Versus 1. Siddhartha Murlidhar Dambale .. Respondents [original 2. Radhabai w/o. Murlidhar Dambale defendants] 3. Murlidhar Dambale Shri S.S. Choudhari, Advocate for the appellants. Shri P.V. Mandlik, Sr. Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 17.03.2010 ORAL JUDGMENT :- 1. This is an appeal filed by the original plaintiffs whose suit for declaration of title and perpetual injunction in respect of House No. 681/1, situated at Gautam Nagar, Parbhani, bearing Regular Civil Suit No. 392 of 1987 was dismissed by the Jt. Civil Judge, Junior Division, Parbhani on 22.06.1988, which judgment and decree is further confirmed ( 2 ) in appeal bearing Regular Civil Appeal No. 135 of 1988 by the III Additional District Judge, Parbhani, by judgment dated 19.02.1998. It is case of the appellants/plaintiffs that they purchased the suit property which was originally open plot, for Rs. 500/- from one Gunaji Bharade, by sale-deed dated 9th August, 1968 and they were put into possession of the same. They made Kachha construction in the year 1969 and inducted tenants. Unnecessarily the defendants were obstructing their possession. Hence, suit for declaration of title and perpetual injunction was filed. 2. It is case of the defendants/respondents that property was belonging to Jankabai. She had bequeathed the property to defendant No.1 and thereafter the defendants have been in possession of the property and the plaintiffs have no title over the property. The plaintiffs are not in possession of the property. 3. Both the Trial Court and the First Appellate Court held that the original sale-deed was not produced on record nor the sale-deed is proved. There is also no reliable evidence of title or possession of the plaintiff. ( 3 ) 4. The Second Appeal is admitted by order dated 18.01.1991 for the substantial questions of law raised in Ground Nos. 3,4,6 to 8 of the Appeal Memo, which are as follows:- “(3) The Courts below failed to appreciate that the registered sale-deed executed by the original land holder Gujaji Kusnaji Bharde in favour of the appellants on 9th August, 1969 had presumptive value. (4) In view of the registered sale- deed burden of proof should have shifted on the defendants i.e. respondents instead the lower Court shifted the burden of proof on the appellants/plaintiff. (6) It ought to have been held that the Municipal Council, Parbhani had entered the names of the Plaintiffs in Municipal Record after due enquiry and it ought to have been held that the Municipal Record supported the case of the plaintiffs. (7) It ought to have been held that the tenants inducted by the plaintiffs were staying in the rooms constructed by the plaintiffs, on the basis of the agreement arrived at between the plaintiffs and tenants. (8) It ought to have been held that the City Survey Record supported the case of the plaintiffs and it ought to have been relied upon by the Courts below. The learned Civil Judge, Junior Division, Parbhani, did not frame the issue properly and therefore, injustice was caused to the plaintiffs.” ( 4 ) 5. The Trial Court has discussed the evidence led by both sides in detail. It is observed that so far as possession is concerned there were several inconsistencies in the depositions of the plaintiff and his witnesses. The purchase was in the year 1968 and the application for entering name in the municipal record was made for the first time on 11th February, 1985. The delay is not explained. On the other hand the evidence of the defendants is supported by copy of decree Exh. 46, Mutation Entry Exh.47, order of the Municipal Committee Exh.48 and copies of Revision register Exhs. 9 to 51. Said evidence is found to be more reliable. So far at documents at Exhs. 30 and 31 are concerned, it is observed in para 19 by the Trial Court that there is nothing on record to show that those entries in the City Survey Record were taken after issuing notices to the concerned persons. The plaintiffs’ evidence regarding possession was also disbelieved for detail reasons given in para 20 and 21 of the judgment by the Trial Court. 6. After considering evidence on record and the issues framed above, in my opinion, mainly the issues are issues of fact and there is no issue of law as such. When original ( 5 ) sale-deed is neither produced on record nor it is proved by examining proper witness, it cannot be said that the plaintiffs have discharged their burden. It cannot be said that there is any presumption in respect of sale-deed. In- fact, title of the original vendor Gunaji ought to have been proved by producing proper evidence. Since the plaintiffs/appellants have come to the Court for declaration, initial burden is on the plaintiffs and since they have not discharged their burden, that burden cannot be shifted on the defendants. 7. The Trial Court has observed that even in respect of sale-deed, the evidence of the plaintiff is that he had paid consideration of Rs. 500/- prior to the sale-deed, whereas two witnesses P.W.2-Abhimanyu and P.W.3-Dagadu both have stated that at the time of agreement Rs. 310/- were paid and thereafter at the time of sale-deed amount Rs. 190/- was paid. So, there was obvious contradiction. Secondly P.W.2 Abhimanyu deposed that his father had received notice from Municipal Committee for depositing taxes and his father used to pay taxes, but the plaintiff deposed that the plot had not been entered in the name of his vendor in Municipal record. ( 6 ) In para 20 of the judgment it is also discussed by the Trial Court that the plaintiff was claiming ownership to house No. 681 and his application dated 11.02.1985 presented to the Municipal Committee was regarding the same. However, in cross-examination, he admitted that House No. 681 did not belong to him. He also admitted that he was not in possession of House No. 681. So, it is said that there is contradiction on the material point. Other evidence regarding possession was discussed in detail. The witnesses of the plaintiffs have contradicted each other. Even in respect of rent that was paid by P.W.6-Garud, there is inconsistency. According to plaintiff the rent was Rs. 60/-; where P.W.6-Garud claimed the rent to be Rs. 120/- in deposition and in previous suit he stated that rent was Rs. 100/-. 8. The Trial Court and the First Appellate Court have considered the evidence in detail. There is no perversity in the appreciation of evidence. There are limitations for re- appreciation of evidence in the second appeal. No substantial question of law as such arises. In the facts and circumstances of the case, in my opinion, this appeal ( 7 ) deserves to be dismissed. 9. Sr. Adv. Shri P.V. Mandlik for the respondents placed on record copy of judgment in Writ Petition No. 2667 of 1990 decided on 21.12.2006. It is taken on record and marked “X” for identification. As per this copy, the respondents had obtained permission for construction and same was challenged. Ultimately, in the writ petition this Court came to the conclusion that the permission was rightly given to the defendants for construction and there is no merit in the petition. In that matter also the Court did not accept case of the appellants/plaintiffs. 10. In the result, the Second Appeal is dismissed. Parties to bear their own costs. 11. In view of dismissal of the Second appeal, Civil Application No. 3016 of 1990 does not survive and it is disposed of as such. [P.R. BORKAR,J.] snk/2010/MAR10/sa286.90