SURESH, GANESH DESHMUKH JADHAV Vs. KASTUABAI, GANESH JADHAV

JUDGEMENT

(1.) Heard learned counsel Mr. Rajendra Deshmukh for the Appellant and Mr. Irale Patil for the Respondent nos.1 to 5.

(2.) This Court, after hearing learned counsel for the parties, at the stage of admission, had framed two substantial questions of law and admitted this second appeal. These two substantial questions of law are reproduced herein below:

(3.) Briefly stated, the facts are that one Tejrao madhavrao Deshmukh was resident of village Ghankheda, taluka Jafrabad, district Jalna. Tejrao Deshmukh, indisputedly, died on 15th June, 1991. There is no dispute that plaintiff Nos.1 and 2 are sons of deceased tejrao, plaintiff No.3 is widow of deceased Tejrao and plaintiff Nos.4 and 5 are daughters of deceased Tejrao. There is also no dispute that defendant No.3 Ganesh is real brother of defendant No.1 Dattatrya and defendant no.2 Baban is son of defendant No.1 Dattatraya. There is also no dispute that defendant No.1 Dattatraya is husband of sister of deceased Tejrao. There is also no dispute that defendant No.3 Ganesh is husband of plaintiff No. Kasturabai, who is daughter of deceased Tejrao. The plaintiff has filed the suit for possession and mesne profits. The agricultural land Block No.71 (old survey no.34/2), admeasuring 6 Hectares 75 Ares, situated at village Dahegaon, Taluka Jafrabad district Jalna is the subject matter of the suit (suit land ). The defendants, after entering appearance have filed written statement at exhibit-10. The trial Court framed five issues in the suit. The issue No.1 was placing burden of proof on the plaintiff. It was regarding claim of the plaintiff that he is owner of the suit land and has acquired ownership by succession. Finding partly is in favour of the plaintiff. Issue No.2 was regarding allegation of the plaintiffs that occupation of the defendants over the suit property is illegal. Finding is in favour of the plaintiffs. Issue no.3 was regarding limitation, whether suit is barred under law of limitation and finding is against the plaintiff. Issue No.4 was in respect of entitlement of the plaintiff for possession of the suit land and finding is against the plaintiff. The trial Court, after considering the evidence dismissed the suit with costs and directed the plaintiffs to pay costs to the defendants and bear their own costs. This was the judgment and decree passed by the trial Court on 31st October, 2002. This judgment and decree was challenged by the original plaintiffs by filing Regular Civil Appeal No.164 of 2002 in the Court of learned District Judge at Jalna. The 4th adhoc Additional District Judge, Jalna, after hearing the parties, allowed the appeal with costs and quashed and set aside the judgment and decree passed by the trial Court in regular Civil Suit No.50 of 1992. The respondents/ defendants were directed to deliver the possession of the suit land to the appellant/ plaintiff. This judgment and decree passed by the first Appellate Court dated 9th June, 2005 in Regular Civil Appeal No.164 of 2002 is subject matter of the present second appeal.