GODAWARIBAI PURUSHOTTAM BAWASKAR Vs. SITARAM BHAGWAN PAITHANE

JUDGEMENT

(1.) Heard. For the sake of convenience, parties are referred to as they were arrayed before the trial Court. The appellant who is the original plaintiff had filed a suit for permanent injunction for restraining the defendants from obstructing his peaceful cultivating possession over the suit property and confirmation of his possession. The suit property is a land bearing Gat No. 403 admeasuring 0.43 R situated at village Kolwad, description of which is given in para No. 2 of the judgment of the trial Court. Though the description thereon states that the suit property is in the form and in the shape of "L ", however the learned trial Court in spite of holding that the plaintiff had established purchase of the land of Gat No. 403 admeasuring 0. 43 R by virtue of the sale deed dated 15.11.1995 and that the plaintiff was in cultivating possession, dismissed the suit on the ground that the description as given in the plaint in respect of the suit property and that as contained in the sale deed did not tally. The learned trial Court also observed that to show that the holding of the plaintiff was of "L " shape out of which one leg was 0.38 R and the other leg was 0.5 R, the plaintiff had not filed any plan and/ or sketch map, nor had she got it measured from the T.I.L.R. so that proper description of the property could be availed on record. The learned trial Court relied upon Order7, Rule 3 of the CPC and found that the boundaries as mentioned in the sale deed at Exhibit 32 did not support the claim of the plaintiff that the land purchased under the sale deed was in "L " shape and the obstruction was of one leg of this 'L ' and dismissed the suit by the judgment and decree dated 30.1.2006.

(2.) Being aggrieved by this, the plaintiff preferredRegularCivil AppealNo.24of2006 before the Principal District Judge, Buldana who also found that in absence of proper and correct description of the property and further in absence of a plan showing location of the suit property, the contention of the plaintiff that the propertywas "L " shape could not be accepted and dismissed the appeal. Hence this second appeal.

(3.) While admitting the second appeal on 24/8/2011, the following substantial question of law was framed :