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TMI Blog2017 (1) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale deeds had not been questioned till date. Appeal dismissed. - Second Appeal No. 547 of 2016 and Civil Application No. 11282 of 2016 in Second Appeal No. 547 of 2016 - - - Dated:- 11-1-2017 - S.P. Deshmukh, J. For the Appellant: Rajendrraa Deshmukkh, Advocate For the Respondent: M.P. Tripathi, Advocate JUDGMENT S.P. Deshmukh, J. 1. Heard learned counsel for the appearing parties. 2. It is defendant No. 5, who is before this Court in Second Appeal against the concurrent judgments and decrees one passed by trial court in regular civil suit No. 66 of 2011 and the other by district court in regular civil appeal No. 175 of 2014, confirming decree of injunction restraining defendants from interfering with plaintiffs' possession over suit property bearing gut No. 575 admeasuring 2 hectors, 10 Are, situated at village Karajkheda, Taluka and District - Osmanabad. 3. It appears that suit land originally had come to Khatunbi from her mother. Khatunbi had executed registered sale deed in favour of one Balbhim Andoji Sathe in respect of said lands. Later around 1980, Balbhim Sathe executed a registered sale deed in favour of one Shivaji Sadashiv Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khatunbi returned the amount of Rs. 3000/-, but Balbhim Sathe had not re-conveyed the property to her. As such, according to him, all the alienations taking place thereafter are vacuous and without any efficacy. While consolidation scheme was being implemented, names of the defendants were mutated which show that there have been no objections by Balbhim Sathe. It has further been referred to that a dispute is going on before the revenue authorities in respect of mutation entries. 10. Trial court, with reference to aforesaid pleadings, had framed issues viz. whether the plaintiffs prove that they are the owners in possession of the suit property, whether the defendants obstructed to their possession and about the entitlement of plaintiffs to injunction. 11. On scanning and appreciation of evidence, the trial Court, relevant to the controversy in the suit, had referred to the revenue record and contention of the defendants that the same would depict their possession and has observed in paragraph No. 22 that revenue documents do not prove ownership and possession of the defendants over the suit property and has further referred to that the plaintiffs have discharged their burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation that neither deceased Khatunbi nor her heirs made efforts to question the first sale-deed dated 01/03/1972 nor the subsequent sale deeds have been challenged by the defendants. 17. The appellate Court has taken into account that defendants/appellants have given lot of stress on the entries in regard to the records of rights, consolidation record and decision of revenue fori in hierarchy. According to them having regard to the same, the sale deeds relied on, can be said to have been not acted upon at all and such suit for injunction could not be maintained. While appreciating the evidence on record, the appellate court has considered that defendant No. 5 has conceded to the title of the plaintiffs and further to that none of the sale deeds had been subject matter of challenge at the instance of the defendants. The appellate court has also considered the evidence on behalf of the plaintiffs and their witnesses and further considered that the defendants have not been able to impeach version of the witnesses on behalf of the plaintiffs. 18. Appellate court in paragraphs No. 19, 20 and 21 has observed: 19. Apart from the verbal version of the witnesses, it reveals fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction was not out and out sale but it was mortgage. His admission and tenor of cross-examination highlight the defendant No. 5 Usman has knowledge of the first sale deed of 1972 and mutation entries standing in the name of plaintiffs' predecessor-in-title on the basis of sale-deeds. So mere non examination of the scribe of the sale-deed (original document on record) and proof thereof do not prove fatal to the plaintiffs case in the light of blatant admissions in the cross-examination of PW-5 Usman. So revenue entries which are meant for fiscal purpose does not infer the long standing possession of deceased Khatunbi over the suit land on the ground of varied verdict of revenue litigation. 27. The defendant No. 5 Usman has no evidence within the norms of section 92 of the Evidence Act to contradict the documents i.e. the sale-deed. In the defendant No. 5 Usman did not take an exception to all sale transactions by separate relief or by counter claim. His sole evidence is not conceivable and reliable to hold the transactions in question were other than sales. So the evidence of plaintiffs finds worthy of acceptance as to their title and possession over the suit lan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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