IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.197/2010 SMT. KAUSALYABAI WAMANRAO GUTTUWAR ..VS.. RAMAJI GOPALRAO BHARADBHUNJE =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- C ORAM : SMT. VASANTI A NAIK,J. DATED : 18th June, 2010. Heard Shri A.S. Joshi, the learned advocate for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff against the City of Nagpur corporation and one Ramaji for a declaration that the plaintiff is the owner of the strip of land admeasuring 10 ft. in width and the respondents be restrained from interfering with the possession of the plaintiff over the suit property. The plaintiff also claimed damages for the illegal demolition of certain construction made by the plaintiff over the suit property which comprises of a strip of land of 10 ft. It was the case of the plaintiff that Ramaji had instituted a suit in the year 1993 against the plaintiff on the ground that the plaintiff had made encroachment over the suit land, but the said suit was dismissed and it was held in that suit that the land belonged to the plaintiff/ appellant. The corporation however, demolished certain construction made by the plaintiff over the suit property which according to the plaintiff was his courtyard on the ground that the corporation was the owner of the property and the plaintiff had no right to make any construction on it. Since the construction was demolished the plaintiff instituted the suit against the corporation as well as Ramaji for declaration and mandatory injunction. The defendants denied the case of the plaintiff and also denied that the plaintiff was the owner of the suit property. The corporation claimed ownership over the same. Both the defendants sought for the dismissal of the suit. On an appreciation of the evidence on record, the trial court decreed the suit of the plaintiff by holding that the plaintiff had succeeded in proving his ownership over the suit property in pursuance of the sale deed executed by one Jairam Batule in favour of the plaintiff in the year 1975 at Exhibit 30. The trial court therefore, granted the reliefs prayed by the plaintiff and asked the corporation to pay damages to the tune of Rs.10000/- to the plaintiff. Both the corporation as well as Ramaji filed separate appeals before the first appellate court against the judgment and decree passed by the trial court. The appeals were heard together and by a common judgment dated 30.9.2009 the first appellate court reversed the findings recorded by the trial court and held that the plaintiff had not succeeded in proving the possession over the suit property including the courtyard. Consequently, the first appellate court held that the Nagpur Municipal Corporation had not committed any illegality in demolishing the structure standing on the courtyard. The suit of the plaintiff was dismissed by the trial court by allowing the appeals filed by the defendants. The finding recorded by the first appellate court on the issue of ownership of the plaintiff over the suit property is a pure finding of facts based on a proper appreciation of material evidence on record. The plaintiff claimed to have purchased the suit property on 23.4.1975 from Jairam Batule. Jairam Batule had purchased the property from one Jairam Chafle on 8.11.1940. The first appellate court observed that the total area sold by the Jairam Batule to the plaintiff was not mentioned in the sale deed, but was merely mentioned in the sketch map. The plaintiff failed to prove that the sale deed executed by Jairam Chafle in favour of Jairam Batule on 8.11.1940 to show that Jairam Batule sold to the plaintiff only the property which was sold by Jairam Chafle to Jairam Batule by sale deed dated 8.11.1940. According to the first appellate court, there was nothing except the sale deed dated 23.4.1975 to show that the plaintiff was the owner of the house including the courtyard and the sale deed also did not state the total area sold by Jairam Batule to the plaintiff. Moreover, the first appellate court considered the fact that in the year 1973, in the Akhiv Patrika house no.291 owned by Jairam Batule was shown to admeasure 89.6 sq.meters, but the sketch map annexed to the sale deed dated 23.4.1975 showed that Jairam Batule had sold more land to the plaintiff. In such circumstances, according the first appellate court, the plaintiff could not have claimed ownership to the suit property. The court held that merely because the property was recorded in the name of the plaintiff after execution of the sale deed in the year 1975, it cannot be said that the plaintiff became owner of the suit property.The first appellate court also considered the fact that the plaintiff had not examined his vendor Jairam Batule to prove his case. The findings recorded by the first appellate court are pure findings of fact based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. The second appeal is therefore, dismissed with no order as to costs. JUDGE SMP