RAJENDRA SAMBHAPPA MITAKARI Vs. KESHAORAO RAGHOJI DABRE

JUDGEMENT

(1.) The present Second Appeal is filed by original plaintiff challenging the reversing judgment delivered by the appellate Court dismissing his suit for recovery of possession on the basis of title. The appellant filed Regular Civil Suit No.494 of 1983 with his deceased mother, pointing out that Northern half of two storeyed building situated in Buty Plots at Amravati, popularly known as Ambekar Bhuwan, was purchased by him from its owner Narayan. Sister of Narayan by name Radhabai, who was residing in part of said Northern portion along with her family is licensee of Narayan after obtaining the sale deeds on 14.3.1980 and 15.3.1980. Her licence was terminated and suit was filed for recovery of possession. The defence of Radhabai was that she was not licensee of Narayan but being daughter of deceased Shamrao Ambekar, she had share in Ambekar Bhuwan and therefore, was in possession as owner only. The trial Court framed appropriate issues and found that one Shamrao Ambekar was the original owner and by Will dated 11.6.1958 he bequeathed Northern portion to his one son Narayan while the Southern portion to his other son Dattatraya. The present appellant then purchased Northern portion from Narayan. It found that Radhabai could not prove that she was owner of property as heir of Shamrao. It, therefore, decreed the suit on 25.8.1986. Radhabai and her husband (present respondents) then filed Regular Civil Appeal No.453 of 1986 before the Additional District Judge, Amravati. By judgment and decree dated 11.12.1992, the Additional District Judge found that alleged Will executed by Shamrao in favour of Narayan and Dattatraya was not proved as required by Section 68 of Indian Evidence Act and as such Narayan could not have sold Northern portion to present appellant. It further found that present Respondent No.2 Radhabai established that she succeeded as heir of Shamrao to share in Ambekar Bhuwan and, therefore, she was in possession as owner and not as licensee. In view of these findings, it allowed the appeal and dismissed the suit of present appellant. This Court has, thereafter admitted Second Appeal on 3.9.1993 by observing that proof of Will in the matter is the substantial question of law which requires consideration.

(2.) During hearing before me, the appellant filed Civil Application No.3080 of 2008 seeking permission to raise additional questions. After hearing both advocates and for reasons recorded in the order dated 23.4.2008, I have accepted two questions as sought to be raised in said Civil Application as substantial questions for adjudication in present Second Appeal with liberty to the respondents to demonstrate that such substantial question really does not arise for determination.

(3.) In this background I have heard Shri Chandurkar, Advocate for the appellant and Shri Deshpande with Ms. Pragati Yerlekar, Advocate for the respondents.