1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 598 OF 2007 Shri Vishwas C. Nandurkar Anr. vs. Smt. Jijabai U. Nandurkar & Ors. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 05, 2008. Heard Shri Gilda, learned counsel for the appellants – original defendants and Shri Ghare, learned counsel for the respondents – original plaintiffs. The challenge is to the reversing appellate Court judgment. The suit filed for declaration, injunction and for removal of encroachment has been dismissed by the trial Court and has been decreed by the appellate Court. Shri Gilda, learned counsel states that once the existence of nucleus was established, burden was upon the present respondents – plaintiffs to conclusively establish that suit property was purchased by them through their own private funds. He contends that there is no such evidence and he further argues that the respondents – plaintiffs did not enter the witness 2 box but Power of Attorney was given to son-in-law who became the member of family sometimes in the year 1985. He wants to point out the admission of son-in-law to demonstrate that he was not aware of position prevailing in the year 1969 when suit property was purchased. He further argues that there is no prayer for recovery of possession, removal or demolition of structure. He further states that the appellant is occupying the property since last more than 30 years. The trial Court has rightly evaluated the position in this respect and all the relevant aspects are not even considered by the appellate Court. As against this, Shri Ghare, learned counsel relies upon the consideration of the matter by the appellate Court and he points out that the trial Court has not correctly appreciated the evidence. He urges that if cross examination of PW-2 – Shrikrushna is looked into, he stated that he lent some amount to present appellant for purchase of property in the year 1969. The trial Court has erroneously not completely appreciated evidence of PW-2 and the entire evidence as such needs to be looked into and the appellate Court has rightly held that it has been established that the appellant was in service and therefore he was 3 having source of income and the property is purchased by him through his own funds. The perusal of judgment of the trial Court shows that the trial Court has not recorded any express finding about the sufficiency of nucleus. Mere existence of three acres of crop yielding land in the family has been held as sufficient to constitute nucleus. There is no finding that said nucleus was adequate to purchase the property. The trial Court has then found that PW-2 has stated that he lent some amount to present respondent for the purpose of purchasing suit property. The appellate Court in para 9 has considered this evidence and found that the suit property was purchased by present respondent through his own funds, who at the time was working with Police department and had his own source of income. Sale Deed Exh. 28 was in the name of original plaintiff. It also found that defendant admitted that he had no document to show his right to suit property as per oral partition in 1977. The appellate Court also found that defendant accepted that there was no document to show ancestral property between him and plaintiff. Shri Gilda, learned counsel for the 4 appellants wanted to cite certain judgments to show that in what circumstances evidence given by Power of Attorney can be relied upon and also the mode and manner in which the appellate Court reversing the judgment of trial Court has to apply its mind. However, in view of the evidence on record which clearly shows that the property was purchased vide Exh. 28 by the respondent – Ukandrao (since deceased) in his own name through his independent source of income to him, I find that the admissions of son-in-law are not that relevant for deciding the present controversy. The appellate Court in paras 9 and 10 considered all the aspects and therefore reversed the finding of trial Court. The perusal of prayer clause in the plaint also shows that there is no express prayer to direct the present appellants to remove their encroachment from suit which has been shown in the map. I do not find that any substantial question of law arises in the Second Appeal. It is dismissed. However, in the circumstances of the case, there shall be no order as to costs. The learned counsel for the appellants 5 states that possession of present appellants should be protected for sometime more so as to enable them to challenge the present order before the Hon'ble Apex Court. The request is opposed by Shri Ghare, learned counsel for the respondents, who points out that interim order has been obtained by the appellants by giving incorrect impression to this Court. However, considering the long possession of present appellants, I am inclined to continue interim relief for a period of eight weeks more so as to enable them to approach the Hon'ble Apex Court. In the circumstances, interim order granted by this Court on 5.12.2007 shall continue for a period of eight weeks more from today and shall cease to operate thereafter automatically. JUDGE *GS.