GOPAL VISHNU GAWDO Vs. MANIKRAU AMRUTRAO PRABHU DESSAI

JUDGEMENT

(1.) Heard Shri S. G. Desai, learned Senior Advocate appearing for the Appellants and Mr. S. D. Lotlikar, learned Senior Advocate appearing for the Respondents.

(2.) The above Appeal came to be admitted by an Order dated 09.07.2010 on the following substantial question of law :

(3.) Briefly, it is the case as set out by the Appellants-Defendants that the Respondents/Plaintiffs claim to be owners of a property known as 'Doncol' surveyed under old Cadastral Survey no. 4 and in the Record of Rights under Survey no. 20/1, 20/2, 21/1 at Village Pissurlem, Sattari, Taluka. It was their case that deceased Appellant-Defendant was only a watchman appointed to watch and guard the coconut grove portion of the suit property but, however, the Appellants claim to be owners in possession of the suit property by virtue of his long peaceful possession and enjoyment openly and continuously against one and all for over 100 years. It is further the case of the Respondents-Plaintiffs that they were obstructed by the deceased-Appellant herein from enjoying the property and, as such, proceedings under Section 145 of Cr.P.C. commenced between the Respondents and the deceased Appellant before the Executive Magistrate, Sattari bearing no. 6/1975. By an Order dated 24.12.1975, the Executive Magistrate came to the conclusion that the deceased-Appellant was in possession of the suit property and the Respondents were ordered not to obstruct their possession. In Criminal Revision Application no. 8/1976 challenging the said Order of the Executive Magistrate, the learned Sessions Judge by Order dated 12.08.1976, quashed the said Order and remanded the matter to decide afresh. By an Order dated 05.09.1977, the learned Executive Magistrate came to the conclusion that he was unable to decide the factum of possession between the contesting parties and appointed a Receiver which, according to the Appellant, had not entered into such possession. In the meanwhile, the Respondents filed Regular Civil Suit no. 63/1978 in the Court of the learned Civil Judge against the deceased-Appellant, inter alia, seeking for a declaration that they are entitled for the possession of the suit property and, consequently, the Appellants be restrained by a permanent injunction from disturbing their possession. In the said Civil Suit, by Judgment dated 30.04.1990, the learned Trial Judge decreed the Suit filed by the Respondents and, inter alia, declared the Respondents as owners of the property and, as such, held that they are in possession of the said property. The deceased Defendant filed an Appeal before the Lower Appellate Court being Regular Civil Suit no. 45/1990 against the Judgment and Decree passed in th said Regular Civil Suit. By Judgment dated 17.12.1994, the learned District Judge dismissed the Regular Civil Appeal filed by deceased Defendant. A Second Appeal was filed challenging the said Judgment being Second Appeal no.26/1995. By Oral Judgment dated 24.06.2005, this Court disposed of the Second Appeal by remanding the matter to the Additional District Judge for disposal afresh after framing an additional issue on the plea raised by the deceased Defendant in their written statement regarding identification of the suit property. Upon remand, the learned Additional District Judge by Judgment dated 12.09.2006, the Regular Civil Suit filed by the Respondents came to be decreed and the Plaintiffs-Respondents are declared to be entitled to the possession of the suit property and, consequently, the Appellants have been restrained from interfering with the possession of the suit property. Being aggrieved by the said Judgment, the above Appeal came to be admitted on the aforesaid substantial question of law.