RAJARAM GANPAT GHONGADE Vs. NIVRUTTI PANDURANG GHONGADE

JUDGEMENT

(1.) THE original plaintiff has filed this Second Appeal challenging the concurrent dismissal of his suit for removal of encroachment and for restoration of possession. He has also challenged the reversing judgment of lower appellate Court by which counter claim filed by present respondent (original defendant) came to be allowed and one acre of land from possession of present appellant is directed to be handed over to the respondent. The appeal has been admitted on questions No. 2 and 10 mentioned in memo of appeal as substantial questions. Those questions are as under :

(2.) THE parties before this Court are real brothers. The present appellant filed Regular Civil Suit No. 253 of 1986 complaining that the respondent defendant took forcible possession of one acre of land out of Survey No. 42/6 from its western side in the month of May 1986. He points out that in partition between brothers effected on 8. 4. 1971, said portion was given to him. According to respondent defendant, two acres portion of survey No. 42/6 was earmarked for maintenance of their mother during her lifetime and after her lifetime, it was to come to him and accordingly on the date of festival of Guddi padwa (Hindu New Year's day), he was put in possession of said portion admeasuring two acres. Thereafter, the plaintiff forcibly took possession of field from him and has cultivated it. He, therefore, filed a counter claim for restoration of said portion of one acre which, according to him, was forcibly taken back by the plaintiff from him. The trial Court dismissed the suit as also the counter claim after noticing that partition deed dated 8. 4. 1971 between the brothers itself was not proved. Both the brothers then filed Regular Civil Appeals. Regular Civil Appeal filed by present appellant was registered as RCA No. 51 of 1991 while rca filed by respondent was registered as RCA No. 46 of 1991. The learned lower appellate Court found that xerox copy of partition deed at Exh. 47 needed to be accepted. It placed reliance upon the said xerox copy as also oral evidence and hence allowed RCA No. 46 of 1991 filed by present respondent and dismissed RCA No. 51 of 1991 filed by present appellant.

(3.) IN this background, I have heard Shri Palshikar, learned counsel for the appellant original plaintiff and Shri Ingle, learned Advocate for the respondent.