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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 80 OF 2020

1] Smt. Tarabai Bhaurao Waghmode,

Age : 43 years, Occu : Agriculture & Household

2] Shri. Mahadev Bhaguji Waghmode,

Age : 68 years, Occu : Agriculture

3] Shri. Murlidhar Bhaguji Waghmode,

Age : 45 years, Occu : Agriculture

All R/o. Pachunda, Tq. Newasa,

Dist. Ahmednagar

.. Appellants

(Orig. Def. No. 2 to 4)

Versus

Sopandev Bapuji Waghmode

(since deceased through his legal heirs)

and others

.. Respondents

...

Mr. H.D. Deshmukh, Advocate for the appellants

...

CORAM : ANIL S. KILOR, J.

DATE : 22-03-2021

ORDER :

1.

The challenge is raised in this Appeal to the Judgment and

Decree passed by the District Judge-1, Newasa, District – Ahmednagar in

RCA/195/2014 upholding the Judgment and Decree passed by the learned

Joint Civil Judge Junior Division, Newasa in RCS/293/2004, decreeing the Suit

for permanent injunction and thereby restraining the defendants from causing

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obstruction to the plaintiffs in possession of the suit land through themselves or

anybody else on their behalf without following due procedure of law.

2.

I have heard learned counsel for the appellants.

3.

The brief facts of the present case are that the plaintiffs filed suit

for permanent injunction and it is the case of the plaintiffs that plaintiffs no. 2

and 3 are real brothers and plaintiff no. 1 was their father. Their family

comprises a joint Hindu family. Plaintiff no. 1 was the karta and manager of

the plaintiffs’ joint Hindu family. Defendant no. 1 is the step-brother of

plaintiff no. 1. Defendant no. 5 is the wife of defendant no. 1. Defendants

no. 2 and 3 are their sons. Defendant no. 4 is the wife of deceased son of

defendants no. 1 and 5. Defendant no. 6 is the husband of defendant no. 7.

Defendant no. 7 is daughter of defendants no. 1 and 5. Family of defendants

no. 1 to 5 is a joint family.

4.

According to the plaintiffs, the suit land is an ancestral property

of plaintiffs’ family. Plaintiff no. 1 and his mother filed a suit against defendant

no. 1 and got possession of suit land in execution proceedings bearing no.

Regular Darkhast no. 124 of 1985 on 22-01-1993. The defendants have no

concern with the suit land and plaintiffs were cultivating the suit land jointly.

On 14-03-2004, the mother of the plaintiff no. 1 - Gangubai died and as per

her last will, she bequeathed her half share in favour of the plaintiffs no. 2 and

3. Accordingly. mutation entry no. 1909 was entered in name of the plaintiffs

no. 2 and 3. It is further the case of the plaintiffs that when the plaintiffs went

into the suit land on 9-10-2004, the defendants threatened the plaintiffs to kill

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and to obtain forcible possession of the suit land. Therefore, suit was filed for

injunction.

5.

The Learned trial Court after scrutinizing the oral as well as

documentary evidence produced by both the parties, and after considering the

relevant law, has held that the plaintiffs are in lawful possession of the suit

property and the defendants caused obstruction to their possession. It is

further held that the plaintiffs, therefore, are entitled for perpetual injunction.

The learned trial Court at the same time negatived the case of the defendants

of adverse possession. The suit was accordingly decreed in favour of the

plaintiff vide Judgment and Decree dated 20-08-2011.

6.

The defendants feeling aggrieved by said Judgment and Decree,

preferred Appeal before the District Judge – 1, Newasa vide Regular Civil

Appeal no. 195 of 2014 which came to be dismissed by upholding the findings

recorded by the learned trial Court in respect of nature of suit property, the

entitlement of the plaintiffs and the possession of the plaintiffs, which is

assaile