IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

BENCH AT AURANGABAD.

SECOND APPEAL NO. 129 OF 2003 Mainabai W/o. Rangnath Patankar, Age : 52 years, Occu. Agriculture & Household, R/o. Village Girwali Bawne, Tal. Ambajogai, Dist. Beed. … Appellant VERSUS

1. Kundalik S/o. Dhondiba Kaladhone, Age : 56 years, Occu. Agriculture, R/o. Sugaon, Tal.Ambajogai, Dist. Beed.

2. Nagu s/o. Dhondiba Kaladhone, (Since deceased through legal representatives)

2a. Shivaji s/o. Nagu Kaladhone, Age : 40 years, Occu. Agriculture, R/o.Sugaon, Tal. Ambajogai, Dist. Beed.

2b. Bhivaji S/o. Nagu Kaladhone, Age : 35 years, Occu. Agriculture, R/o. Sugaon, Tal. Ambajogai, Dist. Beed. … Respondents ..........

Dr. Swapnil D. Tawshikar, Advocate for the appellant Mr Vivek Bhavthankar, Advocate for respondents .............

CORAM : A. M. DHAVALE, J.

DATE OF RESERVING THE JUDGMENT : 25^TH OCTOBER, 2018.

DATE OF PRONOUNCING THE JUDGMENT : 7^TH DECEMBER, 2018.

JUDGMENT :-

1. The appellant is original plaintiff. Her suit bearing RCS No. 477/1984 for declaration that she was daughter of Bala, certificate u/s 38(E) of Hyderabad Tenancy and Agricultural Lands Act, 1950 be declared non-effective and she be put in possession of Bala's land was decreed by Civil Judge Jr. Divn., Ambajogai. Aggrieved defendants had preferred RCA No. 8/92. The ld. Addl. District Judge, Ambajogai by his Judgment dt. 27.06.2002 held that, the plaintiff failed to prove that Bala had married Vanchalabai and she was daughter of Bala. The defendants proved that they were nephews of Bala and by virtue of will, the suit property was bequeathed to them. Hence, the appeal was allowed and the judgment and decree of the trial Court was set aside and the suit was dismissed with no order as to costs. The aggrieved plaintiff has preferred the present second appeal.

2. The facts relevant for deciding this appeal may be stated as under : -

The appellant Mainabai is the original plaintiff and respondents 1A to 1E are legal heirs of defendant No. 1 – Kundlik. Respondents No. 2A & 2B are legal heirs of defendant No. 2 – Nagu. For the sake of brevity, the parties are hereinafter referred to by their first names. Mainabai filed R.C.S. No. 477/84 in the court of Jt. Civil Judge Jr. Division at Ambajogai. As per admitted facts, the land adm. 6 Acres 23 Gunthas at Survey No. 4 at Sugaon is the suit land. Admittedly, it belonged to one Brijlal Bansilal. Bala Nirba was the tenant in the suit land. In the proceedings u/s 38(E) of Hyderabad Tenancy and Agricultural Lands Acts, 1950, he was put in possession and in 1961, he was declared as a deemed purchaser. He had no issues from his wife Kadubai. According to the plaintiff, Bala then married to Vanchalabai and Vanchalabai had two daughters and one son. The eldest son and daughter died and the plaintiff Mainabai is the only surviving daughter of Vanchalaba and Bala. Vanchalabai died during life time of Bala, and Bala died in 1961. Mainabai was maintained by her stepmother Kadubai. The suit land was in cultivating possession of Kadubai and the plaintiff as owners thereof. Bala had no other legal heirs. Kadubai died on 17.10.1977 and thereafter Mainabai became the sole owner of the suit land. Bala had no brothers but Kundalik & Nagu, the original defendants claimed that they were the sons of Bala's brother – Dhondiba. Mainabai's mother Kadubai was illiterate and the plaintiff – Mainabai was cohabiting with her husband at Girwali (Bawne). Taking advantage of this fact, the defendants got their names entered in the revenue record of the suit land and also obtained certificate u/s 38(E) in their name. Mainabai came to know about it at later stage. She issued notice and requested the defendants to hand over the possession. The defendants falsely replied it. Hence, the plaintiff Mainabai filed suit for declaration that she is the daughter of Bala Nirba, (ii) she should be put in possession of the suit land and (iii) the 38(E)

certificate be declared as non-effective.

3. The defendants by Writte