Subhash Mohanrao Wadkute And ... vs Panjabrao Dhondbarao Wadkute
2021 Latest Caselaw 10509 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                 CIVIL APPLICATION NO.9378 OF 2017
                        IN SAST/35212/2016
                               WITH
              SECOND APPEAL (STAMP) NO.35212 OF 2016


              SUBHASH S/O MOHANRAO WADKUTE AND OTHERS
                                  VERSUS
                 PANJABRAO S/O DHONDBARAO WADKUTE
                                     ...
                 Advocate for Applicants : Mr. P. S. Agrawal
                  Advocate for Respondent : S. G. Dodya
                                     ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    06-08-2021.
ORDER :

1) The present civil application has been filed by the original

defendants for getting a delay of 373 days condoned in filing a second

appeal. The applicants want to challenge the concurrent Judgment

and decree passed by the Courts below.

2) Heard learned Advocate Mr. P. S. Agrawal for applicants and

learned Advocate Mr. S. G. Dodya for respondent.

3) Though the learned Advocate appearing for the respondent has

strongly opposed the application, it can be seen that the applicants are

coming with a case that they are from drought area they had left the

village and went out for earning for livelihood. They were not aware of

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the decision by the First Appellate Court and, therefore, there is a

delay. By taking a liberal view, the delay deserves to be condoned,

accordingly, application stands allowed and disposed of.

4) Simultaneously, the second appeal was taken for admission at

this stage itself with the consent of both parties.

5) Heard learned Advocate Mr. P. S. Agrawal for

applicants/appellants and learned Advocate Mr. S. G. Dodya for

respondent on the point of admission of the second appeal also. In

order to cut short, it can be said that both of them have vehemently

made their submissions supporting their respective contentions.

6) The present respondent/original plaintiff had filed Regular Civil

Suit No.49 of 2009 before Civil Judge, Junior Division, Sengaon,

Taluka Hingoli for a permanent injunction. It was his contention that

he is the owner and possessor of land bearing Gut No.53

admeasuring 51 R and land Gut No.97 admeasuring 1 H 41 R

situated at village Babhulgaon, Taluka Sengaon, District Hingoli. He

had purchased it on 31-12-1990 from one Nilabai Wadkute. It was

the contention of the plaintiff that the defendants are obstructing his

possession and, therefore, they should be restrained.

                                        3                                CA 9378-2017



7)       The present appellants resisted the said suit by saying that the

suit property was originally owned by one Mohanrao Babarao who

expired in the year 1990 and, thereafter, they were cultivating the

suit land. Their names were not taken on the 7/12 extract. It is the

ancestral property of the defendants. Some portion from land Gut

No.97 was acquired by the Government. Now no land from that gut

number belonging to the plaintiff is remaining, however, that

deletion was not done by the Talathi in the 7/12 extract of which the

plaintiff is taking disadvantage. They are also trying to take the help

of the consolidation scheme that was implemented in the village.

8) Both the Courts below have considered the oral as well as

documentary evidence on record and held that plaintiff has proved

that he is the owner and possessor of the suit property and,

therefore, the suit was decreed, defendants were restrained.

9) It appears that the defendants have not produced any

documentary evidence. Rather after they had filed the written

statement, they remained absent and they have not challenged the

evidence that was adduced by the plaintiff. Important point to be

noted is that it appears that the appellants had not tried to give any

cogent reason for their absence after the evidence of the plaintiff

4 CA 9378-2017

was closed. In the appeal memo, there was a prayer for remand of

the matter, however, no reason for the absence of the defendants

has been given in the same. It also appears that before the learned

First Appellate Court, the prayer for remand of the matter was not

seriously pressed, but there is observation by the First Appellate

Court that the defendants have purposely remained absent in order

to prolong the hearing of the suit. Another fact that is required to

be noted is that along with the written statement, the defendants

were supposed to produce the documentary evidence and they could

not have waited for their turn to come for adducing evidence. Under

such circumstances, when they are not giving any sufficient and

cogent reason for their absence and also for not producing the

relevant documents on record which might be definitely only public

record which could have been also seen in absence of any oral

evidence, yet for the reasons best known to them, it is not

produced. Under such circumstances, no substantial questions of

law can be said to be arising in this case requiring admission of the

second appeal, it deserves to be rejected, accordingly, it is rejected.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-