1 THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.262 OF 2009 Ashok s/o Hari Londhe, R/o. Londhe Sangvi, Tq. Loha, District Nanded. ... Appellant. Versus Bapurao s/o Hari Londhe, R/o. Londhe Sangvi, Tq. Loha, District Nanded and another. ...Respondents. ... Mr. Uday S. Malte, Advocate for the appellant. ... CORAM : K.K. TATED, J. DATE : 7th JULY, 2009. PER COURT : 1. Heard learned Counsel for the appellant. 2. Present Second Appeal is preferred by the original plaintiff against the judgment and decree dated 31-12-2008 passed by the 1st Ad hoc District Judge, Kandhar in R.C.A. No. 47/2004 arising out of the judgment and decree dated 01-05-2002 passed by the Civil Judge, J.D. Loha in R.C.S. No. 32/2000. 2 3. The appellant – original plaintiff filed suit for perpetual injunction restraining the defendants from causing any sort of interference and obstruction in the possession of the plaintiff over the disputed land i. e. 1 Hector 37 Ares portion of Gat No. 200 of village Londhe Sangvi, Taluka Loha District Nanded. It is the case of the plaintiff that defendant No. 1 who is his brother, without any authority sold the suit property to defendant No. 2 by sale deed dated 14-05-1999. It is the case of the plaintiff that in their family, oral partition took place on 03-04-1995 and prepared a document of memorandum of partition on 06-04-1995. As per memorandum of partition dated 06-04-1995 suit property came to be allotted in his favour. The trial Court framed following issues. ISSUES FINDINGS (1) Does the plaintiff prove that he is owner and possessor of the disputed land? In the negative. (2) Do the defendants prove that In the the defendant No. 2 is bonafide affirmative. 3 purchaser of the disputed land.? (3) Do the defendants prove that the defendant No. 1 sold the suit land to the defendant No.2 for legal necessity.? In the affirmative. (4) Does the plaintiff prove that on 1.8.2000 the defendants caused wrongful obstruction in the possession of the plaintiff over the disputed land.? In the negative. (5) What order, decree & costs? As per final order. 4. Both the Courts below concurrently held that the plaintiff failed to produce any cogent evidence to show that the partition took place on 03-04-1995 and memorandum of partition to that effect was executed on 06-04-1995. Not only that the suit property was standing in the name of defendant No. 1 who sold the same to defendant No. 2 by sale deed dated 14-05-1999. Though it is the case of the plaintiff that he is in possession of the suit property since 1995, his name was not recorded by revenue authorities anywhere. If really he was in possession of the suit property since 1995, revenue authorities would have noticed such cultivation and 4 recorded entries to that effect in his name. Both the Courts held that revenue record does not support the claim of the plaintiff that since the alleged partition he continued to be in exclusive cultivator of the suit land till not only date of filing of the suit but till recording of his evidence, especially when Mohan has deposed that the suit land was in possession of defendant No.2 i. e. purchaser. The appellate Court in Para 16 of the judgment recorded that during the course of cross examination PW-2 Mohan admitted that at the time of execution of sale deed dated 14-05-1999 by Baburao - defendant No. 1 was the Manager of the family. This goes to show that not only till the date of execution of sale deed in favour of defendant No.2 - Laxmibai the family remained a joint family and it's property remained to be joint family property and Bapurao was Karta of the family. Defendant No. 1 sold the suit property in favour of defendant No.2 for legal necessity of joint family. 5 5. The learned Counsel for the appellant did not point out any legal infirmity in the appreciation of evidence by lower appellate Court. Therefore, no question of law, leave apart substantial question of law is involved in the present Second Appeal. Second Appeal is dismissed summarily. No order as to costs. (K.K. TATED,J.) sut/JUL09/sa262.09