BHIMA DAGADU GAIKWAD Vs. SAKHARAM GANU GAIKWAD

JUDGEMENT

(1.) The trial court passed a decree in Civil Suit No. 44 of 1973 on 30.02.1980, directing the defendants to hand over the possession of the suit land described in para 1 at Sr.No. 1 and 2, to the plaintiffs and the defendants are perpetually restrained from obstructing the possession of the plaintiffs' over the suit land. In Civil Appeal No. 573 of 1984, the Appellate Court by its judgment and order dated 1.10.1991, has reversed the decree passed by the trial Court and the suit of the plaintiff has been dismissed. The plaintiffs are, therefore, before this Court in this second appeal.

(2.) The trial court has held that the plaintiffs have established their ownership over the suit lands which are Survey Nos. 37 and 46/1 of village Karanjgaon in the then Bhor State. It has been held that these lands were re-granted in the name of defendant No.1 and the plaintiffs are co-sharers in it. The findings are recorded after taking into consideration the oral evidence of the plaintiff no. 2 and other two witnesses namely Nagnath Apatikar PW-2 and Balasaheb Malekar PW-3. The trial court also relied upon Exh. 13, 14 and 44 which are the extracts of record in respect of Survey Nos. 46, 45 and 37. Relying upon the decision of the Full Bench of this Court in the case of Laxmibai Sadashiv Date vrs. Ganesh Shankar Date, reported in LXXIX BLR 234, the trial Court has held that the rights created under the personal law relating to the parties are not take away by Section 4 of the Watan Abolition Act No.1 of 1959. Though the trial Court accepted that the evidence on record indicating re-grant only in the name of Defendant No.1 and the payment of occupancy price was only by the defendant No.1, it has been held that it must have been after collecting half of the amount from the plaintiffs.

(3.) The appellate Court while reversing the findings recorded by the trial Court has held that the plaintiffs have failed to establish that they were either the members of the joint family of the defendant No.1 or were the co-tenants in respect of the suit property. The appellate Court also considered the oral evidence of all the witnesses and the documents at Exh. 13, 14 and 44. On re-appreciation of the evidence, the trial Court disbelieved the witnesses examined by the plaintiffs and further recorded the finding that there is absolutely no evidence brought on record to show that the plaintiffs were the co-owners in respect of the properties along with the defendants, they had paid their occupancy price or part thereof and that they were in possession of the suit property. In the absence of any pleading and proof regarding the plaintiffs being the members of the joint family of defendant no. 1 or the tenants in common, the appellate Court has held that the decision of the Full Bench of this Court relied upon by the trial Court is of no consequence.