1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 624 OF 2008 Rajeshwar s/o Vishnupant Kulkarni (deceased through LRs) & others .. APPELLANTS VERSUS Champalal s/o Ghisulal Saklecha & another .. RESPONDENTS Shri A.A. More, Advocate for the appellants. Shri A.B. Kale, Advocate for respondent no. 1. ===== CORAM : R. M. BORDE, J. DATE : 11 th August, 2009. PER COURT : 1 Heard Shri A.A. More, learned counsel for the appellants and Shri A.B. Kale, learned counsel for the respondents. 2 This is an appeal by original plaintiffs who has failed before both the courts below in securing favourable relief. Suit was presented by the plaintiffs claiming declaration of ownership and restrain order restraining the defendants from making construction over the plot or causing obstruction to the plaintiffs’ possession. According to the plaintiffs, their father namely Vishnupant purchased plot from Municipal Council, Jalna in 1953 for consideration of Rs.8300/-. He paid last instalment of Rs.500/- on 26-11-1960 2 and thus he became owner and possessor of the plot. He secured permission for construction and wire fence and also erected a wire fence. He died on 27-10-1991 and after his death plaintiffs succeeded to the property. Defendants had no concern with the plot. However, they manipulated city survey record in their favour. Plaintiffs preferred appeal against the entries in city survey record got entered by the defendants and the same is pending. Defendants started construction activity on the disputed plot and as such, plaintiffs approached the court seeking prohibitory order against them. Defendants appeared and resisted the claim by filing written statement and refuted the contention raised by plaintiffs that Vishnupant had ever purchased the suit plot in auction conducted by Municipal Council, Jalna. Defendants contend that they have purchased the suit property from one Himmatlal for consideration of Rs. 10,000/- in the year 1970 and thereafter their names have been entered into the city survey record. According to the defendants, they have sought permission for construction which has been accorded by the Chief Officer and in pursuance to such construction permission, they have started construction activity over the suit plot. It is contended by defendants that they are in possession over the property since last more than 24 years and they have become owners by virtue of adverse possession. 3 Trial court after recording evidence of the parties came to the conclusion that the plaintiffs have failed to establish that they have become owner of the suit plot by virtue of purchase made by their father Vishnupant in auction sale conducted by the Municipal Council. Trial court has also recorded finding that the defendants have failed to prove their ownership 3 on the basis of purchase made by them from Himmatlal in the year 1970. However, as the plaintiffs have failed to establish their case, trial court dismissed the suit by judgment and decree dt. 7-7-2000. Judgment and decree passed by the trial court was subjected to challenge at the instance of appellants / original plaintiffs in Regular Civil Appeal no. 144/2000 which came to be heard and disposed of by the District Judge, Jalna who was pleased to dismiss the suit by judgment and decree dt. 19-4-2006. First appellate court also concurred with the findings recorded by the trial court in respect of title of the plaintiffs over the suit property. 5 I have perused the judgments recorded by both the courts below. Plaintiffs have merely produced copies of receipts in respect of payment of amount to the Municipal Council, Jalna. Apart from the receipt in respect of payment, there is absolutely no evidence with the plaintiffs to show that their father became owner of the suit property by virtue of purchase made during auction proceedings conducted by the Municipal Council. No certificate or sanad issued by the Municipal council is placed on record. There is also no evidence in respect of conduct of auction proceedings and purchase of the property. In the absence of proof of purchase made by the plaintiffs and in the absence of particulars of the property contained in the document of title, it can be said that the plaintiffs have failed to establish their case in respect of their ownership. Apart from this, there is absolutely no evidence placed on record by the plaintiffs in the form of document to demonstrate that they have become owner of the property. As the plaintiffs have failed to establish their ownership, the courts below were justified in turning down the claim put up by the plaintiffs. 4 6 It is pointed out by learned counsel for the appellants that during trial an application was tendered for calling the Chief Officer as witness on behalf of the plaintiffs. However, trial court has rejected the application. I have perused the relevant record in that regard. From the order passed by the trial court it transpires that such an application was made after the evidence of the parties was recorded. Apart from this aspect, plaintiffs have not placed copy of the document on which they seek to place reliance. Plaintiffs could have very well secured copies of the public record and placed the same on record and, in order to prove such copies, plaintiffs could have made request for calling the witness. Such attempt has not been made by the plaintiffs either before the trial court or before the appellate court. In this view of the matter, contention raised by the plaintiffs that they have not been extended opportunity to lead their evidence, does not call for any consideration. No substantial question of law arises for consideration in the appeal. Appeal therefore stand dismissed summarily. 7 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/ds624.08.odt 5 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 307 OF 2009 WITH CIVIL APPLICATION NO. __________ IN SECOND APPEAL NO. 624 OF 2006 __________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s orders or directions and Registrar/s orders and Registrar’s orders CORAM : R. M. BORDE, J. DATE : 11 th August, 2009. 1 These are the applications for bringing on record the legal heirs of deceased respondent no. 1 as well as for condonation of delay of 125 days occurred in presenting such application. 2 Heard learned counsel for the applicants. For the reasons stated in the application, applications deserve to be allowed and the same are accordingly allowed. Legal heirs of deceased respondent no. 1 are permitted to be brought on record. Delay of 125 days occurred in presenting the application stands condoned. Civil applications stand disposed of. ( R. M. BORDE, J.) dyb / office /sa624.08.odt 6 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 4776 OF 2001 IN SECOND APPEAL NO. 624 OF 2006 Office Notes, Office Memoranda of Coram, appearances, Court’s orders Court’s or Judge’s orders or directions and Registrar/s orders and Registrar’s orders CORAM : R. M. BORDE, J. DATE : 11-8-2009 . This is an application for recalling the order passed by this court on 16-4-2009 dismissing Civil Application no. 307/2009 in default. For the reasons stated in the application, application deserves to be allowed and the same is accordingly allowed. Order passed by this court on 16-4-2009 is recalled and Civil Application no. 307/2009 is restored to its original number. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sa624.08.odt 7