-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL No. 103 OF 2009 Mr. Cintaman Maroti Patre .vrs. Smt. Gangubai Domaji Patre ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : MARCH 21, 2009. Heard Shri P.S. Khubalkar, Advocate for appellants. Respondents Contention is, the suit property was self-acquired property and suit was for possession by evicting the defendants. Plea of defendants/ present appellants was that the property was ancestral property and in the alternative he also pleaded that he had purchased 1/4th part of suit house from his brother – Bhagwan and said part was previously sold to Bhagwan by lt. Domaji i.e. husband of plaintiff. Contention of Advocate Shri Khubalkar, for appellant, while challenging concurrent findings is that the plaintiff did not enter witness box and she examined her daughter who was holding power of -2- attorney and he contends that said daughter was only 2 years old, when the old house was destroyed and then the new house was allotted. He states that the said house was allotted to deceased husband of plaintiff and as it was allotted in liew of the property destroyed, it was joint family property. He contends that as plaintiff herself did not enter witness box and as her authorised attorney was only two years old, this story could not be brought on record. He states that defendant has deposed accordingly and the Courts have not accepted that story. His contention is, as plaintiff did not enter witness box, the defendant could not get opportunity to cross examine her and hence this story could not be placed on record. He places reliance upon the judgment of Hon'ble Apex Court in the matter of Janki Vashdeo Bhojwani .vrs. Indusind Bank Ltd ((2005) 2 SCC 217) and Iswar Bhai C Patel .vrs. Harihar Behera (AIR 1999 SC 1341). He further states that the plaintiff approached the court with case in alternative that she had perfected title to suit property by adverse possession. Perusal of various issues framed by the Trial Court reveals that the trial court has found that the house was the property of Domaji and possession of present appellant was unauthorised and of a tress- -3- passer. It is further recorded that defendant could not establish that he had any share in that house property and also could not establish alleged purchase of 1/4th share in it. The plaintiff is therefore, found entitled to recovery of possession. The Lower Appellate Court has also framed similar issues and recorded findings independently in favour of the plaintiff and against defendant. Both the Courts have found that the lease deed Exh.64 of suit plot no.17 was in the name of deceased Domaji and sanctioned map Exh.65 as also maintenance Khasara Exh.66 revealed his name and possession. The tax receipt Exh.Nos.70 to 78 are also relied upon by the Court to record the said finding of title in favour of the plaintiff. It is to be noted that it was the case of the present defendants that property was joint family property and therefore burden was upon them to lead proper evidence. The insistence that plaintiff should have entered witness box to refute the plea taken in defence, is therefore, misconceived. The objection to examine power of attorney in this respect is therefore again misconceived and relies upon both the judgments of Hon'ble Apex Court is uncalled for. The plaintiff examined her daughter who proved the title document and the approach of both the Courts in the matter cannot be labeled as erroneous or perverse. -4- The Courts have not framed any issue about alleged claim of adverse possession by the plaintiff. In the circumstances, I do not find that any substantial question of law arise in the matter. Second Appeal is thus dismissed. No cost. JUDGE Rgd.