1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO.355 OF 2008. Shrikrishna Pandurang Ghumare .vs.. Tushar Laxman Jahagirdar -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C.L.PANGARKAR, J. Dated : 21st November, 2008. 1. Heard Mr.Anil Mardikar, Advocate for the appellant and Shri A.V.Bhide, Advocate for the respondent. 2. This second appeal has been preferred by the defendant against whom a decree for declaration and injunction has been passed. 3. The respondent-plaintiff had instituted a suit for declaration and injunction. He claims that one Chandrakalabai who is grand-mother has 2 executed a Will in his favour and Shailajabai who is other co-owner has executed a Power of Attorney in his favour. He contends that he is the owner of the suit property on the basis of Will and after death of Chandrakalabai he has been cultivating the suit field. It is his contention that the defendant who has no concern whatsoever with the suit property obstructed his possession and therefore he is compelled to institute the suit for declaration and injunction. 4. The defendant resisted the suit filed by the plaintiff and denied even the ownership of Chandrakalabai and Shailajabai. It is his contention that the property has been continuously in possession of the defendant and prior to him it was in possession of other person. The defendant also raised a plea of adverse possession. It is further contention of the defendant that he is the deemed tenant under the provisions of Tenancy Act and Chandrakalabai and Shailajabai had in fact agreed to sell the property to Manohar for a consideration of Rs.12000/-. The defendant's contention is that 3 since he has been in possession of property, the suit is not maintenable. 5. The courts below have found that the plaintiff was the owner of the suit property. The plaintiff had received the possession from one Manohar in the year 1973-74 and he continued to be in possession since then and defendant was never in possession. Holding so, the learned judges of the courts below have decreed the suit. Being aggrieved by that this appeal has been preferred. 6. The learned counsel for the appellant mainly contended before me that there is no proper appreciation of the evidence and improper appreciation of evidence itself is a substantial question of law on which the appeal should be admitted. 7. The learned counsel for the appellant particularly invited my attention to the affidavit filed by the appellant/defendant in which it is stated that right from the year 1956-57 to 2001- 4 2002, the crop statements were in the name of the defendant or his predecessor in possession. Shri Mardikar, learned counsel for the appellant, submits that this fact has been totally ignored by the courts below. He submits that the court should have taken into consideration the fact that for all these years the plaintiff never made any attempt to get the crop statements corrected. The crop statements continued to be in the name of the defendant and prior to that in the name of predecessors in possession of the property. There is no doubt that there is no attempt on the part of the plaintiff to get the crop statement corrected. The question, however, is whether the courts below have considered this aspect or not and if they have considered the evidence, the question is whether such consideration of the evidence could be said to be perverse. Only if it is said to be perverse, this court can admit the appeal saying that the way in which the evidence that has been appreciated borders perversity. 8. In this regard my attention was invited by 5 the learned counsel for the respondent to the observations made by the courts below and its effect. In paragraph no.29 of the judgment particularly the learned trial judge has found that although the crop statements are in the name of the defendant the fact is that one Manohar through whom the defendant claims possession was actually dispossessed under an order of the court in the regular execution proceedings filed in the civil court. The Regular Darkhast Nos.100/75 and 101/75 were filed in the civil court. The possession receipts have been filed at Exh.81 to 84 which clearly go to show that Manohar was dispossessed and the possession was handedover to one Arvind son of Chandrakalabai. This Arvind has been examined by the plaintiff and he has stated that he has taken possession of the suit property for and on behalf of his mother Chandrakalabai and Shailajabai Deshpande. The fact that remains is that Manohar through whom defendant claims was dispossessed. It is not defendant's case that thereafter he has dispossessed Chandrakalabai and Shailajabai and he assumed the possession of the 6 suit property. In the absence of such a case on behalf of the defendant, the crop statements do not carry any value. In this regard the courts below have particularly placed reliance on the fact that the crop statements for the year 1974-75 are blank. In that year precisely the plaintiff is said to have dispossessed Manohar under the order of decree and has taken possession. There is no explanation on behalf of the defendant why crop statements for the year 1974-75 are blank and since there is no case of the defendant that they have re-entered into the possession, the subsequent entries carry no value. The courts below have rightly appreciated the evidence and the question as to whether the plaintiff was or was not in possession is purely the question of fact and not a question of law. 9. The learned counsel for the appellant then submitted before me that the suit simplicitor for declaration and possession could not lie because the plaintiff is not in possession of the property. The courts below have found that the plaintiff was in possession of the suit property and therefore 7 such a suit for declaration and injunction was quite maintenable. There is no substance in the appeal. It is dismissed. JUDGE. chute