JUDGMENT :

(M.S. Jawalkar, J.)

Heard.

2. The present second appeal is filed being aggrieved by the judgment and decree passed by the Court of District Judge 7, Nagpur, in Regular Civil Appeal No.428/2014 upholding the judgment and decree dated 30/08/2014 in Regular Civil Suit No.43/1999 passed by the Court of 7th Junior Civil Judge, Junior Division, Nagpur.

3. The facts in the present appeal are as under: The plaintiff has purchased the suit property Plot No.5 of Mouza Wathoda, P.H. No.34, Pardi, Field No.75/3 admeasuring 4000 sq.ft. from Chandrashekhar Shankarrao Neralwar by registered sale deed dated 22/07/1988, he is in peaceful and lawful possession of the suit property along with construction therein i.e. Zopada. The plaintiff immediately mutated his name in the Municipal Corporation and paid up to date taxes. The plaintiff contended that the suit property was purchased by Chandrashekhar Shankarrao Neralwar from Pujya Ruikar Nagar Sahakari Gruha Nirman Sanstha, Nagpur by a registered sale deed dated 23/02/1988 and thereafter plaintiff purchased the suit property along with Zopada construction.

4. Plaintiff’s case is that, on 20/10/1998 plaintiff along with his family had been to Hiwara for Diwali festival and taking the advantage of absence of plaintiff, the defendant trespassed on the suit property of plaintiff without any legal right or locus standi and removed the construction of zopada and fencing wire compound forcibly and affixed name plate showing defendant is in possession. The said fact came to know by the plaintiff on 03/11/1998 when he reached to Nagpur and visited the suit property. Hence, on 03/11/1998, plaintiff lodged written complaint to Sakkardara police station against the defendant and thereafter issued notice on 20/11/1998 to the defendant thereby calling the defendant to hand over the vacant possession of the suit property within three days. Inspite of receipt of notice, defendant failed to comply it. Hence, plaintiff has constrained to file the suit for possession and damages. The defendant denied that the plaintiff had purchased the suit plot from Chandrashekhar Shankarrao Neralwar. The defendant contended that said Chandrashekhar Neralwar had sold the suit property to the predecessor of the defendant from whom the defendant has purchased the suit property by a registered sale deed dated 21/07/1998, hence the defendant has become the owner of the suit property.

5. The learned Trial Court came to the conclusion that plaintiff has proved his ownership and is entitled for the possession of the suit plot from the defendant and decreed the suit with cost and directed the defendant to deliver the vacant possession of the suit property to the plaintiff within two months from the date of the order. It is also directed to conduct separate inquiry for mesne profits from the date of institution of the suit till the delivery of possession of the suit property in favour of plaintiff. Being aggrieved by the same, the defendant preferred appeal before the learned Appellate Court. The learned lower Appellate Court dismissed the appeal. The said judgment and decree is the subject matter of challenge in the present appeal.

6. The contention of the appellant is that both the Courts below erred in committing serious errors in appreciation of evidence on record by ignoring the material evidence and considering the irrelevant evidence. Despite failure of the plaintiff to prove his ownership of suit plot, Appellate Court dismissed appeal. When the ownership was in dispute and in view of the claim of the ownership of the defendant based on his independent sale deed, the Appellate Court ought to have allowed the appeal. The appellant i.e. the original defendant can be deprived of his possession of the suit plot in view of subsistence of a valid and registered sale deed in his favour. The learned Courts below committing serious errors in decreeing the suit for possession in absence of any decree of declaration of ownership is