(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 612 OF 2007 Abdul Shakur s/o. Ibrahim. .. Appellant (Original defendant no.14 ) versus Laxmikant s/o. Narayanrao Bedre .. Respondents & 13 others. (Nos.1 & 2 - Original plaintiffs & Nos.3 to 14 - Original defendant Nos.1 to 13, except 4) ....................... Mr. Satish S. Deshmukh (Patnurkar), Advocate, for the appellant. Respondent nos.1, 2, 12 and 13 served (Absent). Mr. V.T. Sakolkar, Advocate, for respondent nos.3 to 11. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 3RD MAY 2010 (2) COURT'S ORDER : 1. Heard both sides. 2. The original defendant no.14 is in the Second Appeal, questioning the judgment and decree in Regular Civil Suit No. 327/1985, dated 4th May 1995, and also judgment and order of the first appellate court, in Regular Civil Appeal No. 119/1995 (Old) (i.e. Regular Civil Appeal No. 70/2001 (New)), dated 11-4-2007. 3. In the suit filed by the plaintiffs for possession of a suit shop against the defendants, it was alleged, one Narayanrao Namdeorao Bedre was the owner of suit shop which is situated at Juna Ganj at Udgir. The plaintiff no.11 is the son and plaintiff no.2 is the wife of said Narayanrao. Narayanrao allegedly obtained a loan of Rs. 700/- from one Govindrao Doijode and executed a mortgage deed in his favour on 23-10-1959. Govindrao Doijode died before 10 years from filing of the suit. The defendant nos.1 and 2 are the sons and the defendant no.3 is the widow of Govindrao and defendant nos.4 to 10 are the daughters of Govindrao. Defendant no.11 is another son of Narayanrao. Defendant nos.12 and 13 are daughters of Narayanrao. The defendant nos.1 to 3 leased out the suit shop to defendant no.14, two to four years before filing of the suit they (3) were doing business of grain in it. The defendants denied, Narayanrao was owner of the suit shop or he was suffering from paralysis at the material time. 4. It was canvassed that the defendant has stepped in the suit property, based on the tenancy with one Sayyed Asdulla who was owner of the suit property. Sayyed Asdulla was maternal uncle of the witness at Exhibit 107. The tax receipt produced in the name of Sayyed Asdulla is shown as owner. The courts have observed that such tax receipt was issued as payment of tax amount was paid by defendant no.14 himself. The defendant no.14 was found to have taken undue advantage of his position, got false tax receipt and false assessment tax in the name of Sayyed Asdulla. The defendant no.14 was at the relevant time, Vice-President of the Municipal Council, Udgir, and since last 25 years, he enjoyed the position as a Municipal Councilor. 5. The courts have rightly rejected Exhibit 31 and 107, the extracts of the tax register or assessment register to establish that Sayyed Asdulla was owner of the property and he has leased the same to defendant no.14. The certified copy of the sale deed at Exhibit 108, dated 4-12-1986 was found not helpful to him to establish Sayyed Asdulla was owner of the suit shop. (4) 6. Both the courts have independently assessed the evidence and reached to the correct conclusion, that possession of defendant no.14 was not with a legal concept and the suit of the plaintiff was based on the title which was within limitation. The mortgage deed at Exhibit 30 was proved. It was a mortgage in relation to immovable property. It had a right of possession and enjoyment and not the ownership. The defendant has not raised defence of having received the property by virtue of mortgage deed, Exhibit 30, as a perpetual conveyance by passing of the title. 7. In the result, I find that the Second Appeal does not project any substantial question of law between the parties and it is accordingly dismissed. No costs. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa612