BANUBAI DADU MANE Vs. SUBHADRABAI KRIISHNA NIKAM

JUDGEMENT

(1.) IN this second appeal filed under section 100 of the Civil Procedure Code, 1908, (for short CPC), challenge is made to the judgment and decree passed by the 2nd Addl. District Judge, Satara, on 26-6-1986 reversing the judgment and decree passed by the 3rd Joint Civil Judge, Junior Division, Satara, on 29-10-1983. The 3rd Joint Civil Judge, Junior Division, Satara, decreed the Plaintiffs' suit and restrained the defendant from obstructing the possession and vahivat of the Plaintiff in the suit land and suit house described in para Nos.1 and 2 of the plaint. The trial Court also awarded cost to the plaintiffs. IN the appeal having been filed against the said judgment and decree by the defendant, the appellate Court allowed the appeal, set aside the judgment and decree passed by the trial Court and accordingly dismissed the plaintiffs' suit.

(2.) BRIEF facts necessary for disposal of this second appeal are in a narrow compass. Banubai Dadu Mane, Smt. Tanubai Dhondiba Pawar, Venubai Shripati Shinde and Anusaya Sakharam Gaikwad, appellants herein (for short plaintiffs)) filed suit for declaration and permanent injunction against Smt. Subhadrabai Krishna Nikam, Respondent herein (for short defendant) in the Court of the 3rd Joint Civil Judge, Junior Division, Satara. According to the case set out by the plaintiffs in the suit, the lands situated at village Kaloshi and house bearing G.P..No.80 admeasuring one Khan in three apartments was owned and possessed by Kesu Waghu Nikam, plaintiffs' father. Kesu Vaghu Nikam executed a will on 28.4.1970 and bequeathed all the properties to the plaintiffs. Defendant is the wife of plaintiffs, brother Krishna Nikam. On the basis of the aforesaid pleas, the plaintiffs prayed that they be declared owners of the property in question and the defendant be restrained from interfering with their possession.

(3.) THE defendant dissatisfied with the judgment and decree passed by the trial Court on 29-10-1983 preferred appeal before the 2nd Addl. District Judge, Satara. THE appellate Court after hearing learned Counsel for the parties came to the conclusion that the plaintiffs have failed to prove the execution of the will dated 28-4-1970 as required by law. THE appellate Court also concluded that the plaintiffs have not been able to prove their exclusive possession in the suit properties. In view of the findings aforesaid, the appellate Court held that the plaintiffs were not entitled for any decree of declaration or permanent injunction and consequently allowed the appeal filed by the defendant, set aside the judgment and decree passed by the trial court and dismissed the suit by judgment and decree dated 26-6-1986.