JUDGMENT:- By this appeal the appellants have challenged judgment and order dated 14th September, 1993 passed by 4th Additional District Judge, Nagpur in Regular Civil Appeal No.340/1990, whereby the appeal by the original plaintiff was partly allowed and after setting aside judgment and decree dated 23-10-1990, passed by Second Joint Civil Judge Jr. Dn., Nagpur, the first Appellate Court declared that the appellant (plaintiff) is exclusive owner of the suit plot purchased by him pursuant to sale deed (Ex.23) in the suit. However, the first appellate Court declined to grant relief of possession in favour of the plaintiff in respect of three rooms occupied by respondent Andrew @ Jairon S/o. Bennadick D'Souza.

2. The conspectus of the facts can best be narrated as under:

The plaintiff had filed Regular Civil Suit No.599 of 1987 in the Court of Second Joint Civil Judge Senior Division, Nagpur claiming that the plaintiff is owner of the suit plot having purchased it under registered sale deed dated 10-03-1980. According to the plaintiff, defendant Andrew had retired from service and, therefore, the plaintiff had allowed him to occupy portion of house belonging to the plaintiff. The plaintiff had constructed four rooms in the year 1981 and mother of the plaintiff requested him to accommodate the defendant since after his retirement he had no accommodation. To pay respect to the directions of the mother the plaintiff had allowed the defendant to reside in the additional three rooms constructed by the plaintiff adjacent to four rooms which he had constructed earlier. Further, according to the plaintiff, the defendant had no funds for purchasing plot or for construction of the house but being real brother the plaintiff did not charge him in any form. Latter when sons of the defendant and the defendant started causing nuisance to the plaintiff after picking up quarrels and because the defendant became addicted to liquor the plaintiff had issued notice dated 14-02-1987 through Advocate calling upon the defendant to vacate the suit premises, the defendant, in reply, claimed ownership. By written statement filed in the suit the defendant had claimed that three rooms, which are in his possession, were constructed by him and that he had contributed half amount for purchasing the plot. The plaintiff had assured him that he will divide the plot in three pieces and each brother will get one piece. Thus, the defendant claimed that he, with the help of one Gul Mohammad Contractor, had constructed three rooms. According to the defendant, the plaintiff had refused to execute deed of conveyance in his favour in support of piece of the plot on which he has constructed. It appears that in the trial Court it was held that the plaintiff had failed to prove that he is exclusive owner of the suit premises. While, the trial Court held that the defendant was entitled to 1/3rd plot and that he had constructed the house. In the result, the suit by the plaintiff was dismissed with costs.

3. Being aggrieved, the plaintiff had challenged the decree of dismissal by Regular Civil Appeal No.340/1990 before 4th Additional District Judge, Nagpur who has pleased to allow the appeal partly.

4. It appears that in the trial Court the plaintiff led evidence of himself and other three witnesses. On the other hand the defendant led evidence of himself and two more witnesses. It appears in the evidence of the plaintiff that on 10-03-1980 he had purchased suit plot from one Sukhrani by registered sale deed (Ex.23) and he had constructed four rooms in mud and bricks. At the instance of his mother since the defendant was unemployed three rooms were constructed in 1981 in mud and bricks for the residence of the defendant. He was not paying any rent or amount for residing in the rooms nor has been any funds for the construction. It also appears in evidence that because of the behaviour of the defendant of consuming liquor and having bad eye on the wife of the plaintiff he was asked

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