Bombay High Court
Housrao Sarjerao Dhas And Ors vs Badambai Manik Kadam And Ors on 30 November, 2016
Bench: S.P. Deshmukh
1 SA-49.12.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
SECOND APPEAL NO. 49 OF 2012
1) Housrao s/o Sarjerao Dhas,
Age: 57 years, occup. Agril,
2) Maruti s/o Sarjerao Dhas,
Age : 53 years, occup. Agril.
3) Balbhim s/o Sarjerao Dhas,
Age : 49 years, occup. Agril.,
4) Jagannath s/o Sarjerao Dhas, .. Appellants/
Age : 47 years, occup. Agril.
All above R/o Mulukwadi,
Original Defendants
Tq. and Dist. beed
versus
1) Badambai w/o Manik Kadam,
Age : 56 years, occup. household,
R/o Soundana, Tq. Patoda,
Dist. Beed
2) Laxmibai w/o Mahadeo Kotule,
Age : 61 years, occup. household,
R/o Warwati Tq. and Dist. Beed
3) Tukaram s/o Kisan Dhas,
Age : 53 years, occup. Agril.,
R/o Mukulwadi, Tq. Pathoda,
Dist. Beed
4) Sakharam s/o Kisan Dhas,
Age : 48 years, occup. Agril.,
R/o Mukulwadi, Tq. Patoda,
Dist. Beed
5) Romalbai w/o Govind Ingole .. Respondents/
Age : 42 years, occup. household, Orig. Plaintiffs
R/o Aher Dhanora, Tq & Dist. Beed
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Mr. Sachin V. Kuptekar, Advocate h/f Mr. V.D. Salunke,
Advocate for appellants
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2 SA-49.12.doc
CORAM : SUNIL P. DESHMUKH, J.
DATE : 30th November, 2016
ORAL JUDGMENT:
1. Heard learned counsel for the appellants.
2. Learned counsel for the appellants-original defendants
contends that the trial court had under judgment and order
dated 25-02-2008 dismissed regular civil suit no. 153 of 2004 for
injunction initiated by father of the present respondents against
the appellants herein, however, the appellate court while
allowing regular civil appeal no. 80 of 2008 at instance of
plaintiffs, decreed the suit by judgment and decree delivered on
11-08-2011. Plaintiff-the father of present respondents died
during pendency of suit and in his place, legal heirs -
respondents herein - had been brought on record.
3. Learned counsel contends that, in such a situation,
injunction may not have been issued against the appellants -
defendants. He, however, fairly refers to the decisions rendered
by the courts thus far that, so far as declaration is concerned,
the plaintiffs have adduced evidence in respect of the same as
well as about their possession over suit property., However,
further contends, trial court had appropriately considered that
the plaintiff while claims ownership in respect of 51 aar, record
so produced by plaintiff was only in respect of 48 aar and further
that the cause of action may not survive qua the appellants.
3 SA-49.12.doc
4. Perusal of the judgments and the orders passed by the
courts, trial as well as appellate, shows that as a matter of fact,
the trial court has indeed considered that the description as
given in the plaint by the plaintiff and in his evidence cannot be
said to have been challenged by the present appellants and, as
such, the plaintiff's case with regard to description of property
had been accepted by the trial court.
5.
The appellate court, in turn, has referred to that the
documentary evidence in the shape of revenue record would
show that the concerned land, in fact, admeasures 51 aar and
not 48 aar as sought to be contended, taking into account that
48 aar is cultivable portion and remaining 3 aar is barren part as
depicted in the revenue record.
6. The parties do not appear to be at dispute with regard to
ownership over suit property of plaintiffs. They also accept that
the plaintiffs have adduced evidence about disturbance in their
possession as referred to in the plaint while the same has not
been rebutted by any cogent evidence by the present appellants
- defendants.
7. It is not a matter, under the circumstances, wherein it can
be said that there is absolutely no evidence. As a matter of fact,
the situation is quite otherwise. Injunction is sought in respect of
4 SA-49.12.doc
disturbance to possession over the property in the suit against
defendants by plaintiffs.
8. There does not appear any gross error committed by
appellate court while granting decree for declaration and
injunction in favour of plaintiffs as prayed for.
9. Second appeal does not appear to give rise to any
substantial question of law and thus stands dismissed.
SUNIL P. DESHMUKH,
JUDGE
pnd
