CHANDRASHEKHAR Vs. SHAKUNTALABAI GIRDHARILAL JAIN

JUDGEMENT

(1.) HEARD Mr. Deshpande, learned counsel for the appellant and Mr. Pawar, learned counsel for the respondent No.1. The Second Appeal is being finally disposed of, hearing both sides.

(2.) IN this matter, the appellant/ plaintiff brought Regular Civil Suit No.39/2004 for declaration, partition and perpetual injunction relating to City Survey No.557, Plot No.65, admeasuring 1800 sq. ft. Plaintiff claimed that, he and defendant No.1 jointly purchased the suit property from original occupant Vijaya Vitthaldas Gujrathi on 1.1.1989 and since then they were in possession. The plaintiff and husband of defendant No.1 were running business jointly and there was partition between them in 1996. Thereafter, plaintiff started residing in two rooms in the western part of the property and defendant No.1 started residing in the eastern part. Plaintiff refers to payment of electricity charges and taxes to claim that he had joint ownership. On the basis of averments made in the suit, plaintiff claimed half share in the property and injunction against defendant No.1 claiming that she was obstructing his possession. Defendant claimed exclusive ownership in the suit property.

(3.) APPEAL was carried before the District Judge -2, Dhule being Civil Appeal No.116/2008. The first appellate Court considered points whether the plaintiff is having half share in the suit property and answered the same in negative. The first appellate Court noticed that although the plaintiff was claiming equal share in the suit property and claimed that it was purchased from income of the family, he had not examined his brother. It was observed that, plaintiff did not examine his other brother Anand in support. The Court considered that although plaintiff relies on the affidavit of the previous owner Vijayabai, the person was not examined. It was thus held that unless Vijayabai was examined, the contents of affidavit could not be admissible in evidence. The Court alternatively read the document and still observed that it does not prove the title of plaintiff as the affidavit did not say that it was jointly sold to plaintiff and defendant No.1. Considering that plaintiff was residing in part of the property, his having tax receipts has not weighed with the Courts.