ABAJI YAMAJI KOTKAR Vs. VITHAL BALA CHOUDHARY

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 07.12.1993 passed by the learned 4th Additional District Judge, Ahmednagar in Regular Civil Appeal No. 302 of 1986 thereby setting aside the judgment and decree dated 30.04.1986 passed by learned 5 th Joint Civil Judge, Junior Division, Ahmednagar in Regular Civil Suit No. 577 of 1982 and further decreed the said suit, the original defendants have preferred this second appeal.

(2.) Brief facts giving rise to the present second appeal are as follows:-

(3.) Learned counsel for the appellants submits that the lower appellate court has not correctly appreciated the evidence led by the parties and recoded the findings without any basis. The lower appellate court has not taken into consideration the conduct of the plaintiffs, who flatly denied to produce either agreement of sale, sale deed or rent note on record to show the boundaries of the suit land. Learned counsel submits that the suit is bad for non joinder of necessary parties. The suit is also barred by limitation. The appellants have not received the notices of D.I.L.R. in respect of measurement of the suit land. The appellants-defendants and respondents-plaintiffs are having vahivat up to the bandh and therefore, the appellants have not made any encroachment. The trees in question are owned and possessed by the appellants. The appellants in the alternate prayed for adverse possession. Learned counsel for the appellants submits that the lower appellate court without considering all these material aspects of the matter has allowed the appeal filed by the respondents-plaintiffs and decreed the suit by setting aside the judgment and order of the trial court.