Bhumendra S/O Tarachand Dongre ... vs Fulichand S/O Dayaram Dongre
2021 Latest Caselaw 10752 Bom

Order                                                                                    18 sa 8915-2021
                                                    1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                               SECOND APPEAL ST. NO.8915/2021
                           Bhumendra s/o Tarachand Dongre and another,
                                             -VERSUS-
                             Fulichand s/o Dayaram Dongre and others.
Office notes, Office Memoranda of
Coram, appearances, Court's orders                           Court's or Judge's Orders
or directions and Registrar's orders.

                                         Shri V.R. Borkar, Advocate for appellants.

                                         CORAM : S.M. MODAK, J.

DATE : AUGUST 10, 2021.

Heard learned Advocate for the appellants/original plaintiffs.

2. Plaintiff's suit for declaration as to exclusive ownership over the suit property as against his brother- defendant no.1 and for cancellation of sale-deed executed by defendant no.1 in favour of defendant nos. 2 and 3 was decreed by the Trial Court. However, when the defendants filed First Appeal, judgment was reversed and suit was dismissed. This is original plaintiff's second appeal.

3. More emphasis is on unchallenged testimonies of four of the witnesses of the plaintiff. Three defendants have neither challenged those testimonies nor adduced any evidence. The plaintiff has rested his case on agreement for sale dated 06/02/1983 and registered sale-deed dated 17/04/1983. Plaintiff claims that he was the sole owner/purchaser. Plaintiff has pleaded that on the say of father, the name of defendant no.1/his brother is also added

Order 18 sa 8915-2021

on 7/12 extract in addition to his name. He comes with the case that by taking disadvantage of appearance of name of defendant no.1 on 7/12 extract, he has executed the sale- deed with defendant nos. 2 and 3.

4. The Trial Court finds favour with the plaintiff and decreed the suit. Whereas, the First Appellate Court emphasized that the registered sale-deed dated 17/04/1983 was not proved by the plaintiff. The First Appellate Court also referred to a sale-deed dated 12/01/1984 and it was registered one but it was not produced. There is a contention that the First Appellate Court has not considered the fact that his evidence was not challenged on behalf of the defendants. There is a contention that the First Appellate Court under the presumption of the jointness about Hindu undivided family was swayed away and not accepted the case of the plaintiff that the suit land was self acquired property of the plaintiff.

5. It is true that there is presumption of joint Hindu family but there is no presumption that the joint Hindu family also holds the property. That presumption has not been drawn by the First Appellate Court. The First Appellate Court has emphasized about failure of the plaintiffs to prove the documents of title. Merely because defendants have not challenged the evidence or not given evidence, it does not mean to say that plaintiff can get benefit and it can be said that he has discharged the burden. The plaintiff ought to have produced the registered sale-deed on the basis of which he is claiming exclusive ownership over the suit land. The First Appellate Court has rightly emphasized on this aspect. The

Order 18 sa 8915-2021

plaintiff could be justified in agitating the inaction of the defendants if he could have proved the documents of title. Unfortunately, it has not happened. Merely because, this is not a case of concurrent finding, it does not mean that second appeal has to be admitted as a matter of right. It can be admitted only if the Court finds that substantial questions of law are involved for interference by this Court.

6. On perusal of the First Appellate Court judgment, this Court finds that the error committed by the Trial Court in appreciation has been corrected by the First Appellate Court. So I do not think that this is a case for admission of second appeal. No interference is warranted. Hence, the appeal stands dismissed.

JUDGE

R.S. Sahare