1 SA / 277 / 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 277 OF 2017

AND

CIVIL APPLICATION NO. 4377 OF 2017

Sharad Nana Waghmare

Age : 61 years, Occu. : Pensioner

R/o. 499, Rasta Peth,

Uma-Shankar Co-op. Hsg. Society,

Flat No. 303, 3^rd Floor, Pune

.. Appellant

Versus

Mohan Eknath Waghmare and others

.. Respondents

...

Mr. S.S. Wagh, Advocate for the appellant

Mr. V.S. Bedre, Advocate for the respondent no. 1

Respondent nos. 2A, 2B, 3 to 6 served – absent

Respondent no. 2/C served as per Court’s order dated 15-09-2017

...

CORAM

: MANGESH S. PATIL, J.

DATE

: 29 MARCH 2022

ORDER :

Heard the learned advocates of both the sides on the point

of admission of the second appeal.

2.

This is an appeal by the original defendant no. 4 who is

aggrieved and dis-satisfied by the judgments and orders of the courts

below holding the respondent no. 1, who is the original plaintiff, to be

entitled to protect his possession over the super-structure of the house

property erected on the gram panchayat property no. 188 till he is

dis-possessed by the due process of law.

3.

The respondent no. 1 filed the suit against his own father

and his paternal uncles, the appellant being one of them, seeking a

2 SA / 277 / 2017

declaration that the plot on which the gram panchayat property no. 188

has been erected, is a joint family property. He has constructed the

super-structure of the house with the consent of everybody including

the appellant. Still, the appellant is obstructing his possession, hence

he claimed declaration and perpetual injunction.

4.

The trial court partly decreed the suit. It declared that the

open space on which the super-structure has been erected is the joint

family property but the respondent no. 1 was the owner of the

super-structure. It also granted perpetual injunction restraining the

appellant from causing any obstruction until he was dis-possessed by

the due process of law.

5.

Appellant preferred appeal against the judgment and

decree passed by the trial court. It has been dismissed by the

judgment and order under challenge. Hence this second appeal.

6.

The leaned advocate Mr. Wagh for the appellant would

submit that there was ample evidence before the courts below to

demonstrate that the appellant and his brothers were separate in all

respects. There was evidence to show that the agricultural lands were

partitioned and some of the brothers had sold their respective shares to

him. He would further submit that there was also evidence to

demonstrate that each one of these brothers was occupying separate

house properties. Admittedly, the suit property was standing in the

name of the appellant in all the government records. The respondent

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no. 1 was laying a false claim. In-fact, the appellant himself had

carried out the construction but taking advantage of the fact that he

was staying in Pune due to his employment that the respondent no. 1

effected forcible entry into the house property in the year 2003 about

which he lodged a police complaint.

7.

Mr. Wagh would further submit that when the respondent

no. 1 had approached the courts below seeking a relief, they had

grossly erred in expecting the proof only from the appellant. Both the

courts have erred in placing the burden on the appellant. The

judgments and orders are perverse and arbitrary. Substantial

questions of law arise for determination by this court and the second

appeal be admitted.

8.

The learned advocate Mr. Bedre for the respondent no. 1

would submit that there was no dispute about the fa