1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.298 OF 1991 1) Dattusingh s/o Babu Mathurasingh (died through his L.Rs.) 1A) Godawaribai Dattusingh Thakur Age:Adult, occu. Agril. R/o Village Kolhe Borgaon, Tq. Biloli. 1B) Surekha Dattusingh Thakur Age: Adult, occu. And r/o as above. 1C) Rekha Dattusingh Thakur, Age: Major, occu. And r/o as above. 2) Bhagwanshingh s/o Babu Mathurasingh; 3) Geneshsingh s/o Babu Mathurasingh; 4) Gopalsingh s/o Babu Mathurasingh. ..APPELLANT (orig.Pltffs. Nos. 1 to 4) VERSUS Digambar s/o Sakharam Sutar ..RESPONDENT (Orig.Deft.) --- Mr.Rajendra Deshmukh, Adv.for the appellants; Mr.A.G.Godhamgaonkar,Adv.for Respondent. --- 2 CORAM : K.U.CHANDIWAL, J. DATE : 15th June, 2009 *** ORAL JUDGMENT : 1. The plaintiff, seeking recovery of possession of disputed house no.23, got decree in RCS No.267/1981, directing the defendant to vacate the premises. However, Regular Civil Appeal No.81/1985 moved by the aggrieved defendant turned the situation, as learned Additional District Judge, Nanded (as then he was), allowed the appeal and consequently, the aggrieved plaintiff is in Second Appeal. 2) On 10.09.1991, while admitting the appeal, this Court formulated following substantial question of law : “Whether documentary evidence like Exhibit-28 or Exhibit-30 is properly considered is substantial question of law.” 3) The Counsel agree that reference to Exhibit-30 is inadvertent, it should have been 31 as the document is at Exhibit-31. 4) The parties are referred with their original status as plaintiff and defendant for convenience. The plaintiff, literate and rather court bird, has prosecuted the defendant, seeking recovery of possession of house no.23, as is 3 referred in the claim title of the plaint. The plaintiff, in order to stake his claim for possession heavily banked on a rent note allegedly executed by Sakharam, father of the defendant, in favour of Babusing, father of the plaintiff. 5) The plaintiff, apart from adducing his evidence, has also examined attesting witness Moglaji, as P.W.2, who, at the time of giving evidence in the Court, stated his age to be 55-60 years, while calculating his age at the material time of the agreement he could be oscillating between 15 to 16 years. It is rather unbelievable that the plaintiff’s father, who could dictate the terms of the lease-deed to the P.W.2, the young person then 15-16 years to scribe document did not scribe it. The evidence of Moglaji, is again difficult to be digested as after 30-35 years of the documentation, this gentleman is categorical about time of document to be 8 to 9 a.m. or giving presence of the persons at the material time. He had the audacity to write the document in modi script, as has been surfaced in the document. He is apparently associated with the plaintiff in his cause to get restoration of the property, as is spelt out in the cross-examination. At the material time, when the plaintiff had controversies with the Gram Panchayat, Moglaji 4 was a Sarpanch way back in 1964-65. Then he corrected himself that Shankar was looking after proceeding on behalf of Gram Panchayat. The evidence on the point of rent agreement, Exh. 31, as adduced by the plaintiff and the witness, is not satisfactory. 6) Now, turning to the very document, the Counsel for the respondent rightly pointed that the document grovels as it is lacking in description of the property. Reading the document from any angle, it is apparent, it cannot be connected to the suit property. The plaintiff asserts that the suit property is part of his Gadhi. This has been shattered as in between disputed property and the so-called Gadhi, there is a pathway disclosed by the plaintiff. This has been substantiated by D.W.2, examined on behalf of the defendant, viz. Chandu, aged 70 years. As against the evidence of Moglaji, evidence of Chandu, 70 years’ old barber and agriculturist, will have its impact in the matter. He has given detailed description in paragraph 1 of his evidence and was categorical that the suit house is not part and parcel of Gadhi of plaintiff. On this aspect of the matter, there is no vibrant cross-examination to distort conversion of this witness. 7) Mr.Deshmukh, while arguing the matter 5 extensively, took me to the judgment of the Court of first instance and also to the judgment of the first Appellate Court. This exercise has been criticized by the counsel for respondent as, according to the counsel and rightly, when the first Appellate Court was the last fact finding court, some limits should have been carved out while addressing the second appeal. Without much dissecting on this aspect, the fact remains that the very lease-agreement or rent note, Exh.31, rebels against the contention of the plaintiff to match it with particulars of the suit property. 8) Then comes Deputy Collector’s permission dated 29.6.1964 (Exh.28). This document, though refers that Babusing had sought permission of construction on place of land situate in front of his house and forming portion of the Gadhi, however, this order, in any way, will not accelerate plaintiff’s case to connect it to the suit property, to which the plaintiff staked his claim. Indeed this document, means, plaintiff inasmuch as way back in 1964 was asserting his rights on portion of Gadhi. He was armed with lease-deed in his favour allegedly executed by father of the defendant, there was no reason for the plaintiff at least from 1964 onwards to remain in slumber to stake claim to the property, which belonged to his father or descended to him. Exhibit 31 does not indicate 6 it relates to carrying certain obligations either by father of the defendant or by the defendant. Such obligations, as accelerated, are not placed in the Court. This aspect, as stated earlier, demonstrates the conduct of the plaintiff to prosecute the matter. Parties did not bother to produce Grampanchayat record or Tax paid receipts to lean to corroborate individual assertion. 9) The learned Judge of the first Appellate court has elaborately discussed the evidence, and what made him not to accept the contention, coined by the plaintiff are absolutely correct. I do not see, such observations of the learned District Judge are not flowing in tune to the documents or evidence. They cannot be termed as surmises or conjunctures. Second Appeal lacks merit, it is dismissed with costs. ( K.U.CHANDIWAL) JUDGE agp/bdv/sa298.91