Advocates:
['RA GUPTE', 'SP BHANDARKAR', '', 'RB HINGNEKAR', 'NOTICE/R-SOLE SERVED', '', 'GHATE', 'SW GHATE/R', 'PW DEOGADE', 'NP DEOGADE', 'SS', 'R-SOLE SERVED ON MERIT']

1 SA168.2004.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR.

Second Appeal No. 168/2004

1.

Istari S/o Shivram Gavhane,

Aged about 70 years, Occ. Cultivator,

R/o Khoba, Tah. Sadak-Arjuni,

Dist. Bhandara

.....

Appellant

...Versus...

2.

Hagru S/o Ganpat Dongre,

Aged about 52 years, Occ. Cultivator,

R/o Khoba, Tah-Sadak-Arjuni,

Dist. Bhandara

.....

Respondent

------------------------------------------------------------------------------------------------------------------

Shri R.A. Gupte, Advocate for appellant

None for respondent

------------------------------------------------------------------------------------------------------------------

CORAM : A.S. CHANDURKAR, J.

DATE : 14/09/2017

Oral Judgment:-

1.

The original plaintiff has filed this appeal being aggrieved by the

reversal of the decree passed by the trial Court in his favour. According to

the appellant, he had agreed to purchase an agricultural field bearing Khasra

No. 68/3 admeasuring 1 acre from the defendant and one Mst. Revati. It is

2 SA168.2004.odt

his case that an earlier suit bearing no. 135/1968 had been filed by the

present plaintiff against the defendant and three others. As per the decree

passed in that suit, the defendant herein was directed to deliver possession of

the suit field to the plaintiff. Khasra No. 68/3 was re-numbered as Gat No.

50. As the defendant obstructed his possession, suit for permanent injunction

came to be filed. The defendant filed his written statement at Exh. 19. He

took the stand that he had not sold the suit field to the plaintiff. Taking

disadvantage of the adjudication in civil suit no. 135/1968, the plaintiff was

disturbing his possession. After the parties led evidence, the trial Court came

to the conclusion that the plaintiff was in possession of the suit field. The

claim of the plaintiff was supported by the decree passed in R.C.S No.

135/1968. The suit was accordingly decreed. The appellate Court, however

reversed this decree on the ground that the boundaries of the suit property

did not tally with the boundaries of Gat No. 50 which was the subject matter

in R.C.S No. 135/1968. Being aggrieved, the plaintiff has filed this appeal.

2.

While admitting the appeal, following substantial question of

law was framed:-

“(i) Was the appellate Court right in

formulating a question as to whether plaintiff fails if

the property was described by giving Gat No. or

Block No., etc, when law requires the property which

3 SA168.2004.odt

is subject to agricultural land revenue to be described

by settlement or survey no. ?”

3.

Shri R.A. Gupte, the learned counsel for the appellant submitted

that the trial Court on a proper consideration of the evidence on record had

found that the plaintiff was entitled for relief on the basis of adjudication in

R.C.S No. 135/1968. He submitted that in yet another suit being R.C.S No.

37/1979, the defendant herein had been examined at Exh. 45 and he had

supported the case of the plaintiff. According to him, the appellate Court took

the consideration of irrelevant circumstances for holding against the plaintiff.

He submitted that the land in question was earlier Khasra No. 68/3 and not

Khasra No. 86/3. Similarly, the appellate Court wrongly considered the

boundaries of some other field and then arrived at a conclusion that the

boundaries of the suit field did not match the boundaries of the field owned

by the plaintiff. He therefore submitted that the judgment of the trial Court

deserves to be restored.

4.

The appeal was heard on 07/09/2017, 11/09/2017 and

12/09/2017. There was no appearance on behalf of the respondent. Today

also, there is no appearance on his behalf. With the assistance of the learned

counsel for the appellant, I have perused the r