GURUNINGAPPA SOMANNA BIRAJDAR Vs. DARYAPPA SAYABANNA BIRAJDAR

JUDGEMENT

(1.) SHORT question which calls for consideration in this appeal is whether the Courts below were justified in rejecting appellant's/plaintiff's prayer for possession in respect of eastern portion (1/2 portion) of land bearing Survey No.155, Hissa No.1.

(2.) FACTS relevant for the present judgment are as under : Plaintiff's father was original owner of the lands bearing Survey No.155, Hissa No.1, area admeasuring 4 hectares 70 ares (11 acres 25 gunthas). Plaintiff filed suit initially for injunction. Subsequently plaintiff amended the plaint and sought possession. The said prayer is in alternate. As plaint stands today plaintiff has sought possession of the suit lands and the said claim in based on title. Defendants have filed there written statement. As far as eastern part from the aforesaid land is concerned, it is the case of defendants that plaintiff's father Somanna, during his lifetime sold 1/2 portion of the eastern side to defendant for Rs.6,000/-, however, sale-deed could not be executed during the lifetime of plaintiff's father and after his death as plaintiff was minor the sale-deed was not executed. No other particulars are given such as date of agreement for sale or date of payment of amount or terms. As far as western part is concerned, defendants stated that it was sold to defendant Nos, 4, 5 and 6 without their being any sale-deed. As the western part of the aforesaid land is not subject matter to the present appeal, I am not dealing with the said part in detail as trial Court has decreed plaintiff's suit for western part and has restrained defendant Nos. 4 to 6 from interfering with plaintiff's possession over the western half portion. However, plaintiff's suit in respect of eastern half portion against defendant Nos. 1 to 3 and 7 has been dismissed.

(3.) PLAINTIFF challenged decree of dismissal of the suit against defendant Nos. 1 to 3 and 7 by way of Regular Civil Appeal No.475 of 1984. The Additional District Judge, Sangli only considered issue of injunction and dismissed appeal. In entire judgment not a single statement can be found, whereby, it can be said that appeal Court has considered plaintiff's alternate prayer for possession. Thus, appeal court has totally failed to consider plaintiff's prayer for possession of the eastern half portion of the aforesaid land.