1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 776 OF 2008 Padmabai w/o Raosaheb Deshmukh & another .. APPELLANTS VERSUS Eknath s/o Sukha Netkar (deceased through LRs) .. RESPONDENTS Mr. M.D. Joshi, Advocate for the appellants. Mr. Girish Rane, Advocate for respondent nos. 1A, 1C and 1D. ==== CORAM : R. M. BORDE, J. DATE : 7 th October, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the judgment and decree passed by the Additional District Judge, Amalner on 26-3-1998in Regular Civil Appeal n o. 109/1985 whereby the appeal presented by the respondent / original defendant came to be allowed and the judgment and decree passed by the trial court in Regular Civil Suit no. 20/1979 came to be set aside. 2 2 Plaintiffs instituted suit against the defendant claiming recovery of possession of the suit property. It is contended in the plaint by plaintiffs that defendant is trespasser and has assumed possession of the property without authority of law. Plaintiffs as such claim recovery of possession of the suit property on the basis of their subsisting title. 3 Defendant opposed the case pleaded by plaintiffs contending that the defendants are in possession in pursuance to an agreement to sell executed in their favour by the original owner. Defendant contends that he is entitled to protect his possession in view of section 53A of Transfer of Property Act. 4 After considering evidence led by the parties, trial court granted decree in favour of the plaintiff. Judgment and decree passed by the trial court was subjected to appeal at the instance of defendant before the first appellate court. The first appellate court has allowed the appeal and set aside the judgment and decree passed by the trial court. 5 I have perused the judgment recorded by the first appellate court. It transpires on perusal of the judgment that although plaintiffs have pleaded 3 in respect of encroachment at the instance of defendant, however, witness for the plaintiff has specifically deposed before the court that the defendants are in possession over the property in pursuance to a mortgage agreement executed in their favour. Plaintiffs as such have put forth their case in respect of subsisting mortgage at the time of leading evidence in the court. Evidence led by the plaintiff is contrary to the pleadings raised. Appellate court was therefore justified in holding that the plaintiffs have not substantiated their case in respect of trespass committed by the defendant. Plaintiffs have admittedly not presented suit claiming redemption of mortgage. In this view of the matter, the first appellate court was justified in allowing the appeal and setting aside the judgment and decree passed by the trial court. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa776.08.odt 4 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 8567 OF 2009 IN SECOND APPEAL NO. 776 OF 2008 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 7 th October, 2009. 1 This is an application for bringing on record legal heirs of deceased respondent no. B as well as for condoning delay of 769 days occurred in presenting the application as well as for setting aside abatement. 2 Heard. For the reasons stated in the application, application deserves to be allowed. Delay of 769 days occurred in presenting the application for bringing on record legal heirs of deceased respondent no. B stands condoned. Legal heirs of deceased respondent no. B are permitted to be brought on record. Abatement to that effect is set aside. Record be amended accordingly. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sa776.08.odt 5