1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.916 OF 2005. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 30.11.2010. 1. This is defendant's Second Appeal. The plaintiff had filed the suit for declaration and injunction. The suit was dismissed as against defendant No.2 and decreed against defendant No.1 to the extent, the defendant No.1 is perpetually restrained from obstructing the plaintiff in his possession over the suit land. The defendant No.1 has assailed the said judgment and decree before the District Court. The District Court confirming the judgment and decree passed by the trial Court, dismissed the appeal. The defendant No.1 has assailed the said judgment and decree in the present Second Appeal. 2. Mr.R.B.Deshmukh, learned counsel for the appellant strenuously contended that the compromise deed was not admissible in evidence. In absence of any application for secondary evidence, the said compromise deed could not have been read. The learned counsel further contended that presumption U/s 90 of the Evidence Act, for 30 years old document is only to the execution and the contents are required to be proved by independent evidence. The learned counsel submits that the plaintiff has not adduced any evidence, as such it can not be said that the said compromise deed is proved. Apart from the said compromise deed, there is nothing on record to show that the plaintiff has got right and title over 3 acres 35 1/2 gunthas in land S.No.28. 3. Per contra, Mr.Chandole, learned counsel for the original plaintiff submits that the Courts below concurrently on evaluating the total evidence on record has come to the conclusion that the plaintiff is an owner and in possession of the suit property. He relied on the observations of the lower appellate Court in para 10, wherein the lower appellate Court has reproduced the terms of compromise. 4. With the assistance of the learned counsels, I have gone through the the judgments and decrees delivered by both the Courts. No doubt, the presumption i.e. attached to 30 years old document is only with regard to the execution and not to the contents. The compromise in the present case is registered with the Sub-Registrar. The Courts have not simply relied on the compromise terms executed between the parties in 1352 Fasli but they have also considered the attending circumstances. It is not disputed that Vitabai was the original owner. In light of the same, even by inheritance the land devolved on the legal heirs i.e. Maroti, Govind, Anand and Gopal. The defendant No.2 being one of the heir, the suit was dismissed against him. The defendant claimed his right over the property on the basis of gift deed executed by Vitabai. The Courts have held that the said gift deed does not include the suit property S.No.28. The Courts by preponderance of probabilities taking into consideration the oral evidence of P.W.1 of whose Vitabai was the aunt, the decisions in the revenue records and the relations subsisting between the parties has come to the conclusion that the plaintiff has proved his case. The arguments of Mr.Deshmukh, learned counsel about the admissibility of the compromise deed would have been material and relevant, had the judgment being based solely on the compromise terms but the other evidence on record has also been considered and Courts have come to a possible conclusion. The jurisdiction U/s 100 of the C.P.C. can not be invoked, merely on the ground that some other view would be possible, more particularly, even when the defendant could not prove that the source of his title i.e. the gift deed by Vitabai includes the suit property. 4. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.30.11.2010. asp/office/sa916.05