1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 514 OF 2003 Waman s/o Harbaji Patil ( Deceased through LRs) .. APPELLANTS VERSUS Kishan s/o Harbaji Patil & others .. RESPONDENTS Mr. D.R. Bhadekar, Advocate for the appellant. Mr. R.P. Bhumkar, Advocate for respondent nos. 3, 7, 8 and 11. Respondent nos. 2 and 5 dismissed as per court order dt. 30-11-2007 Respondent nos. 1,6, 9 and 10 served. Respondent nos. 4 and 12 deleted vide court order 25-10-2007. ===== CORAM : R. M. BORDE, J. DATE : 8 th September, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted suit claiming declaration of ownership and perpetual injunction in respect of half share out of survey no. 38 total admeasuring 36 acres and 38 gunthas. According to plaintiff, he is in 2 possession of an area to the extent of 18 acres and 19 gunthas which is numbered as survey no. 38A. Defendants have no concern with the property. However, they are trying to interfere in his possession. According to plaintiff, his brother defendant no. 1 has concern with the other half portion. In the earlier partition, he was allotted land admeasuring 18 acres and 19 gunthas land which has been numbered as survey no. 38A. Plaintiff as such contends that defendants have no entitlement to cause interference in possession over the area possessed by him. Defendants appeared and controverted the contentions raised in the plaint. According to them, after considering the declaration made in favour of the defendants, the only land remains with the family is to the extent of 9 acres and 6 gunthas. It is thus contended that plaintiff is not entitled to seek the relief. 3 Trial court after considering the evidence led by the parties came to the conclusion that the plaintiff has not established his case and as such dismissed the suit. Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no. 40/1992 at the instance of plaintiff. Appeal also came to be dismissed by the first appellate court by judgment dt.25-8-2000. 3 4 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. It has been recorded by the courts below that out of the total land one Sidhu is declared as owner over an area to the extent of 9 acres and 6 gunthas. Defendant no. 1 had sold an area to the extent of 4 acres and 23 gunthas. One Digambar is held entitled to 9 acres and 6 gunthas whereas Yeshwant is held entitled to 4 acres and 6 gunthas. Considering the declaration made in respect of tenancy rights, land remains with the family is only to the extent of 9 acres and 5 gunthas. Considering this aspect, case put up by plaintiff does not appear to be logical. The courts below on appreciation of oral evidence as well as documentary evidence came to the conclusion that plaintiff could not establish his case and as such dismissed the suit. I do not find any infirmity in the reasons recorded by the courts below. Apart from this aspect, so far as respondent nos. 2, 4, 5 and 12 who claim their entitlement through tenant are concerned, in their absence no effective order could be passed. Considering these circumstances, I do not find that the appeal deserves any consideration. Appeal therefore stands dismissed summarily. 4 5 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa514.03.odt