1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR SECOND APPEAL NO.166/2010 SHRIRAM DANE ..VS.. TEJRAO YELNE Office Notes, Office Memoranda of Coram, Appearances, Court’s orders or directions and Registrar’s orders Court’s or judges Orders. CORAM: SMT. VASANTI A. NAIK, J. DATE: 25 /10 / 2010 Heard Shri Gupta, the learned counsel for the appellant and Shri Kapgate, the learned advocate for respondents. The appellant is the original plaintiff. The plaintiff had filed a suit for declaration that he was the owner of the suit property and that the defendant no.1 did not have any right to sell the suit property to the defendant no.2. It was the case of the plaintiff that he was the owner of the suit property being his ancestral property and therefore, he sought the cancellation of the sale deed dated 7.3.2000 executed by defendant no.1 in favour of defendant no.2. The plaintiff pleaded that the father of the defendant no.1 came to reside in their village and taking disadvantage of the ignorance and simplicity of the plaintiff, the father of the defendant no.1 recorded his name in the survey record. It was pleaded by the plaintiff that he was in peaceful possession of the suit house being his ancestral house and he had a preferential right to purchase it. The defendant no.1 filed the written statement and denied the claim of the plaintiff. According to the defendant no.1 one Kusan was the owner of the suit property and he had 2 two sons by name Natthu and Sitaram. It was pleaded by the defendant no.1 that in the year 1957, Sitaram's widow Motubai sold the agricultural land and the house of her husband to defendant no.1's father Raghunath by registered sale deed and since then the defendant no.1 was residing in the said house. It was pleaded by the defendant no.1 that the suit house was sold to the defendant no.2 by defendant no.1 after he shifted to his newly constructed house. The defendant no.2 filed the written statement and denied the claim of the plaintiff. It was pleaded by the defendant no.2 that the plaintiff and the father of the defendant no.1 were the owners of gat no.141 and the northern portion of the house was in possession of the plaintiff and the southern portion was in possession of defendant no.1's father. It was pleaded by the defendant no.2 that the defendant no.1 sold the suit house to the defendant on 7.3.2000 by a registered sale deed. The defendant no.2 also sought for the dismissal of the suit. Both the courts on an appreciation of the evidence on record held that the plaintiff had failed to prove that he was the owner of the suit property and was in possession of the same. It was held by the courts that the plaintiff had been unsuccessful in proving that the defendant no.1 was residing in the suit house with the consent of the plaintiff and defendant no.1 had recorded his name in the record in collusion with the concerned officials. The courts held that the defendant no.1 had proved that the suit house was purchased by his father 3 from one Motubai in the year 1957 by a registered sale deed and the plaintiff was not entitled to any relief as sought by him. While recording the aforesaid findings, the courts held that the plaintiff had not challenged the Sanad – Exhibit 64 dated 3.3.1994 and had also admitted in his cross-examination that the said sanad was of suit land and he had not taken any objection to the recording of the name of the father of the defendant no.1 as the owner of the suit house in the Sanad. Both the courts held that the plaintiff also did not have a preferential right to purchase the suit house as he was very distantly related with the defendant no.1. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of the evidence on record. They do not give rise to any substantial question of law. The second appeal therefore, fails and is dismissed with no order as to costs. JUDGE SMP.