1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.301/2008 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. V.S. Bedre, Advocate for appellants. Mr. B.S. Kudale, Advocate for respondents no. 2, 3, 5 and 8. [CORAM : K.U. CHANDIWAL, J ] Date : 7th April, 2010. PER COURT : 1 The learned Additional District Judge, Majalgaon, by order dated 10/07/2007 dismissed R.C.A. No. 67/2004 (Old R.C.A. no.39/2000). Consequently the second appeal by the plaintiff. 2 The plaintiffs’ case is, they are sons of one Lal khan while plaintiffs no. 4 and 5 are sisters of plaintiffs no.1 to 3. Defendant no.1 is son of deceased Rambhau. Defendants no. 2 and 3 are 2 wives of deceased Rambhau. The agricultural fields survey no.36/1, ad measuring 10 acres 8 gunthas situated at Harki Limbgaon locally known as Lalbhai patti, is suit property, possession of which was taken by Rambhau and Eknath behind back of plaintiffs in collusion with the village Talathi by entering their names in record to the same, and got its division by survey no. 96/1 in the name of Rambhau an survey no. 96/2 in the name of Eknath. They learnt of such false entries. Subsequently, it is canvased that, property was purchased by Lalbhai in the year 1931 which reflected R.C.S. No. 279/1/1331 Fasli i. e. 1931 and the plaintiff or their father continued possession over the suit property till 1978. 3 In order to substantiate the evidence of the plaintiffs, two witnesses were examined who though in examination in chief supported the 3 plaintiffs but on the point of any agreement between plaintiff and the defendants disown the agreement showing that it was so informed to them by plaintiff/s. 4 The crux of the matter as has been referred by first appellate court revolve to a litigation being a decree in R.C.S. No. 279/1/1358. It was canvassed that it was fraudulently obtained as plaintiff did not sign compromise, they were not parties to the suit. In fact, because of withdrawal of subsequent suit being R.C.S. No. 76/1/58 dated 25/01/1960, the contentions to validity of the decree in suit no. 279/1/58 came to an end. 5 The plaintiff /s asserts the cause of action to the suit as 10/11/1983 when the defendant denied to deliver the possession. It was canvassed, the defendants used to pay share of crops from 1967 to 1978 which they abruptly stopped. There is no document to substantiate the above referred 4 contention of the plaintiff. Since the plaintiff has abandoned suit or part of the claim, it was incumbent upon plaintiff to have statutory advantage to seek permission of the court to institute fresh suit for same subject matter. 6 However, withdrawal of the suit has confirmed the effect of decree in R.C.S. No. 279/1/358. The Courts on analysis of evidence found that in the year 1958, the cause of action to the suit was shown as 04/06/1958. 7 The appellate court calculated limitation. It expired in 1970. The analysis of evidence carried by both courts, was in tune to the court decree entered into between parties. It could not be said that due to police action at particular time in the vicinity, the plaintiff /s abandoned village and came subsequently, they were welcomed by the villagers and shares by crop basis were rendered to the plaintiff. These submissions are basically illusory in its 5 nature, not supported by any whisper of document made on imagination, need not further to be stretched. Second appeal sans merit. Dismissed. [K.U. CHANDIWAL, J.] tsk/sa301.08