Bombay High Court
Angad Ganpati Halle vs Kesharbai Dnyanoba Kamble And ... on 11 April, 2017
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.280 OF 2017
Angad Ganpati Halle APPELLANT
Age - 54 years, Occ - Labour
R/o Bhadgaon, Taluka and District - Latur
VERSUS
1. Kesharbai Dnyanoba Kamble RESPONDENTS
Age - 51 years, Occ - Agriculture & Household
2. Bharat Dnyanoba Mane
Age - 56 years, Occ - Agriculture
Both R/o Bhadgaon, Taluka & District - Latur
.......
Mr. Satish S. Manale, Advocate for the appellant
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 11th APRIL, 2017
ORAL JUDGMENT :
1. Heard learned advocate for the appellant.
2. Learned advocate vehemently submits that the description
as has been given by the appellant - defendant in respect of suit
property is more probable than the one given in the plaint as
'suit property'. Learned advocate further submits that in the
cross-examination of the witness examined on behalf of the
plaintiffs, it becomes clear that the defendant is in possession of
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the property claimed and plaintiffs, in the circumstances, ought
not to have succeeded in getting decree of declaration and
injunction.
3. According to learned advocate even before grant of
"Kabala", by government, appellant - defendant had been in
possession of suit property. The record amply bears out the
same, as would be evident from Exhibit-35, a panchanama. The
trial as well as appellate courts in the circumstances have erred
in restraining the defendant from obstructing alleged possession
of the plaintiffs over suit property.
4. Although it is being submitted so, in paragraph No.13 as
well as in paragraph No.15, of its judgment, the appellate court
has observed thus -
" 13. Adv. Pande drawn my attention towards the
panchanama at exh.35. This panchanama was prepared on
16.3.1993 by Revenue Circle Inspector i.e. prior to the
allotment of Kabala to the plaintiff. In the said
panchanama, it was mentioned that defendant has kept
rubbish on the suit plot. Relying on this contents Adv.
Pande submitted that this contents itself indicates that
defendant is in possession over the suit plot even prior to
the allotment of Kabala to the plaintiff but lower court has
not considered this aspect. In respect of the panchanama I
would like to state that this panchanama shown to be
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prepared in presence of defendant Angad but in the cross-
examination he denied his presence at the time of
panchanama. Panchanama only shows that defendant kept
rubbish on the suit plot. Mere throwing rubbish not
amounting to a possession but the same panchanama
shows that towards western side of the suit plot there is
house of defendant Angad which was given by the
Government to him. Plaintiff, in the year 1990 resided in
the suit plot but due to fire her hut was burnt. Thus, the
panchanama clearly shows that the suit plot is not a part
and parcel of the defendants house but it was having
separate situation than the house of the defendant. It
further shows separate existence of suit plot and house of
the defendant. Panchanama clearly shows possession of
the plaintiff over the suit plot prior to 1990. Therefore,
merely keeping rubbish on the plot do not amount to be a
possession of the defendant over the suit plot.
15. Adv. Pande drawn my attention towards the
photographs exh.87 to exh.89. He submitted that these
photographs filed by defendant are admitted by the
plaintiffs witness Gopal Kamble which itself indicates that
towards the western side of Bhatangali to Bhadgaon road
the house of defendant is situated. On perusal of these
photographs it appears that there was a open space in
between Bhatangali to Bhadgaon road the house of
defendant. Some bricks and stones are kept on that open
space. Here defendant has not given any explanation as to
who kept those bricks and stones on the open space. To the
contrary evidence of plaintiff indicates that she is intending
to construct the suit house over the suit plot, therefore, she
brought building materials. She has taken permission for
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construction and thereafter defendants caused obstruction.
Therefore, merely because the bricks kept on the open
space is not enough to hold the possession of defendant. To
the contrary photographs filed by the defendant itself
shows that there was a open space in between the house of
defendant and Bhatangali to Bhadgaon road. "
5. Aforesaid observations as are appearing, are not shown to
be perverse in any way.
6. In the circumstances, the argument that other view is
possible would not tilt this case in favour of the appellant, while
two courts have appreciated evidence on record and have given
concurrent findings on the same. As stated above, the same do
not appear to be perverse. It is not a case wherein it can be said
that a substantial question of law would arise for consideration in
the second appeal. Second appeal as such, is dismissed.
7. In view of dismissal of second appeal, civil application
No.4401 of 2017 does not survive and is disposed of.
[SUNIL P. DESHMUKH, J.]
drp/sa280-17
