RAMRAO DAMADAJI LIHAKARI Vs. INDUBAI AJABRAO RAUT

JUDGEMENT

(1.) Heard Shri Mohta, learned counsel for the appellants.

(2.) By this Second Appeal the original plaintiff is challenging the judgment delivered by the Court below dismissing the suit of plaintiff for declaration and injunction. The plaintiff contended that he purchased Survey No.2/2 admeasuring 5 Acres, 14 Gunthas situated at Village . Bombarda Mankirad, Tq. . Karanja, District . Akola. The field was initially owned by one Tulsabai and after her death, it devolved upon her three daughters Indubai, Mankarnabai and Dwarkabai, original defendants No. 1 to 3 in this suit. The trial Court found that plaintiff could not establish legal and valid purchase because after Tulsabai, defendants No. 1 to 3 became owners and plaintiff purchased property only from defendant No.1 . Indubai and not from defendants No. 2 and 3. This judgment of trial Court dated 15.1.1987 was challenged by present appellant by filing Regular Civil Appeal No. 28 of 1987 and said appeal came to be partly allowed on 30.8.1990 by Additional District Judge, Akola. The appellate Court found that sale deed obtained by appellant . plaintiff to the extent of share of defendant No.1 . Indubai was valid and therefore suit is good to that extent. The suit therefore remained dismissed against defendants No. 2 & 3. Thereafter this Second Appeal has been filed. This Court has on 1.4.1993 treated grounds No. I & II in memo of appeal as substantial questions of law. However, no grounds were formally formulated.

(3.) Shri Mohta, learned counsel for the appellants contends that evidence on record clearly demonstrates that defendant No.1 . Indubai was in exclusive possession of entire property and she was authorised by defendants No. 2 & 3 to deal with the property. He, therefore, states that appellate Court has not properly appreciated the controversy. He further points out that the plaintiff claimed that Indubai was exclusive owner and only written statement filed on record was by Indubai, who denied exclusive ownership. No written statement was filed by Respondents No. 2 & 3. As required under Order 8, Rule 10 of Civil Procedure Code as there was no written statement filed by defendants No. 2 & 3, the suit as against them ought to have been decreed. He further wants to rely upon certain evidence to show that Tulsabai left behind her some other properties apart from the suit property and defendants No. 2 & 3 dealt with those properties exclusively. He contends that this evidence shows that there was partition between defendants No. 2 & 3.