Bombay High Court
Martin Danial Bhalerao vs Tarachand Sakharam Salve on 13 February, 2025
2025:BHC-AUG:4617
1 sa585.23 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 585 OF 2023
Martin Danial Bhalerao
Age : 52 years, Occ. Business,
R/o : Ghorpade Peth, Pune. ...APPELLANT
(Original Plaintiff)
VERSUS
1. Tarachand Sakharam Salve,
Age : 65 years, Occ. Agril,
2. Latabai Tarachand Salve,
Age : 60 years, Occ. Agril,
3. Anna Tarachand Salve,
Age : 33 years, Occ. Agril,
4. Ganesh Tarachand Salve,
Age : 29 years, Occ. Agril,
Respondent Nos. 1 to 4 are
R/o : Nagar, Tq. & Dist. Ahmednagar.
5. Dinessh Sitaram Kulwal,
Age : 45 years, Occ. Agril,
R/o : Behind Mahesh Talkies,
Karachiwala Nagar, Ahmednagar,
Tq. & Dist. Ahmednagar.
6. Radheshyam Madhavlala Khandewal,
Age : 70 years, Occ. Agril & Business,
7. Prakash Balasaheb Darkunde,
Age : 31 years, Occ. Agril. & Business,
R/o : Bahirwadi, Post. Jeur,
Tq. Nagar, Dist. Ahmednagar.
8. Bhagwan Vithoba Aware,
Age : 42 years, Occ. Agril,
R/o; Imampur, Tq. Nagar,
Dist. Ahmednagar.
9. Kumudini Danial Bhalerao,
Age; 70 years, Occ. Agril,
2 sa585.23 judgment
R/o : "Saint Luka" Housing
Society, Panchhaud, Guruwar
Peth, Pune. ...RESPONDENTS
(Original Defendants)
................
Mrs. Charuta S. Deshmukh : Advocate for the Appellant
...............
CORAM : S. G. CHAPALGAONKAR, J.
Dated : 13.02.2025
JUDGMENT :
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1. Appellant (Original Plaintiff) impugns judgment and decree
dated 01.04.2023 passed by Principal District Judge, Ahmednagar in
Regular Civil Appeal No. 341 of 2016, thereby, upholding judgment and
decree dated 29.09.2016 passed by 3rd Joint Civil Judge, Junior Division,
Ahmednagar in Regular Civil Suit No. 506 of 2011. (The parties are
hereinafter referred as per their original status in suit for the purpose of
brevity).
2. The plaintiff filed Regular Civil Suit bearing No. 506 of 2011
seeking relief of declaration and ownership in respect of 1/3rd share in
suit property bearing Survey No. 107/4 and consequential relief of
perpetual injunction against defendant Nos. 1 to 8 from alienating or
creating third party interest in suit property on the basis of sale deed
dated 01.03.2011.
3. In brief, plaintiff contends that his grand-father Raghunath
had purchased suit land under registered sale deed on dated 12.05.1924.
Plaintiff being his legal representative, is in lawful possession of suit
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property. Defendant No. 1 taking dis-advantage of fact that plaintiff's
father was residing at Pune in pursuance to his job, got entered his name
in record of rights in collusion with Talathi. On 01.03.2011 defendant No.
1 illegally sold part of suit land to defendant Nos. 5 to 8.
4. Contesting defendants refuted plaintiff's claim contending that
suit property is part of Survey No. 107. Previously it was bearing Survey
No. 66. Survey No. 107 has been renumbered as block No. 191 during
consolidation. Defendant Nos. 1 to 4 inherited suit land from Sakharam
who was re-granted land as per Watan Abolition Lands Act. Plaintiff has
no concerned with suit property. Trial Court framed issues based on
pleadings, recorded evidence and concluded that plaintiff failed to prove
their ownership and possession over four boundaries as described in
plaint being part of Survey No. 107, consequently suit is dismissed.
Plaintiff carried forward claim in appeal before learned District Judge,
Ahmednagar, vide Regular Civil Appeal bearing No. 341 of 2016, which
came to be dismissed upholding judgment and decree of trial Court.
5. Mrs. Charuta Deshmukh, learned Advocate appearing for
appellant/plaintiff submits that in year 1924 grand-father of appellant
had purchased entire suit land from Survey No.107 under registered sale
deed. The claim in present suit is pertaining to 4 A 99 R from Survey No.
107. She would endeavour to point out that Courts below confused
themselves in between Survey No. 107 and Gut No. 107. Respondents
admitted that they purchased suit land of Survey No. 107 from
respondent Nos. 5 to 8, which shows that plaintiff's land illegally dealt and
possessed by defendants.
6. It appears that, plaintiff based his case on his oral evidence
and testimony of PW-2 Pravin Gaikwad, whereas, documentary evidence
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in form of Exhibit 83 and 87 produced by defendants show that old
Survey No. 65 and 66 consolidated as Block No. 107, whereas, old Survey
No. 107 is converted to Block No. 191. 7/12 extract of Survey No. 199
and 107/4 are also made part of record. Plaintiff could not produce on
record any evidence to show that land purchased by his grand-father has
been merged in block No. 107. On the other hand, defendant No. 6 in his
evidence stated that block No.107 is formed by consolidating old Survey
No. 65 and 66 and suit property bearing block No. 107/4 does not form
part of old Survey No. 107. The extract of consolidation register at Exh.
88 supports case of defendants that Survey No. 107 has been merged in
block No. 191. Mutation entries on record supports case of defendants.
7. In light of aforesaid evidence, both Courts have recorded
finding of fact that land in possession of defendants is not part of old
Survey No. 107 and plaintiff has erroneously made up claim without
verification of old Survey record of block No.107. Looking to consolidation
and revenue record old Survey No. 107 is now converted into Gut No.
191, however, plaintiff has described boundaries of Gut No. 107 in suit for
raising his claim. Both Courts below are therefore justified in dismissing
suit and appeal. No substantial question of law arises for consideration in
the Second Appeal. In result, Second Appeal stands dismissed. In view of
dismissal of Second Appeal, pending Civil Applications, if any, shall stand
dismissed.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
