PRADEEP RAJARAM DAWLE Vs. SWARUPCHAND UTTAMCHAND BANWAT

JUDGEMENT

(1.) This Appeal was admitted on following substantial questions of law raised by the appellant (original defendant) as follows :

(2.) The Second Appeal is initiated at the instance of defendant against whom decree has been passed by the first Appellate Court ( learned 2nd Adhoc District Judge, Buldana) in Regular Civil Appeal No. 169/2004 on 8.3.2007. The trial Court had dismissed Regular Civil Suit No. 297/1993 in Civil Judge, Jr.Dn., Malkapur. The parties shall hereinafter be referred to as Plaintiff and defendant.

(3.) Facts briefly stated are : Original plaintiffSwarupchand was owner of agricultural land bearing S.No. 5/2 admeasuring 3 H 26R situated at Gadegaon, Tal, Malkapur Dist. Buldana. He was suffering from cerebral malfunction since childhood and the suit was filed through his next friend Bhagchand, who died pending the suit and his son Rikhabchand came on record as next friend of Swarupchand. Swarupchand also died during pendency of suit and was substituted by his legal heirs on record. Swarupchand had got the suit land as his share in partition since 1959. His bother's wife Surjabai w/o Shantilal cultivated suit land on his behalf till her death on 1.12.1993. Bhagchand, stepbrother of Swarupchand, started cultivating after death, but was obstructed by the defendant. Thus, suit was instituted for perpetual injunction. The defendant resisted the suit pleading that Swarupchand and Surjabai had leased the suit land to the defendant's father Rajaram Dawle and defendant and his father cultivated the suit land, claiming that they have established tenancy rights, and prayed for dismissal of the suit.