ISMAIL MEHABOOB SHAIKH Vs. DABADA SHIVRAM SALAVE

JUDGEMENT

(1.) Heard learned Counsel for the parties. Learned Counsel appearing for the appellants invited my attention to the grounds taken in the Second Appeal and in particular ground No.3 and submitted that, subject matter of the suit is the property which is purchased by original plaintiff from his brother. The plaintiff and also his brother in their cross examination have specifically stated that they do not know the area which has fallen in their share in the partition. It is further submitted that the dispute between the plaintiff and the defendants was in respect of same property in both the suits. It is further submitted that the suit filed by the appellants herein and the suit filed by the respondent should have been tried together by the Trial Court. It is further submitted that the Trial Court should have ordered joint measurement of the suit property, under Order 26 Rule 10 of the C.P.C. Therefore, relying upon the ground taken in the Second Appeal, the evidence of cross examination of original plaintiff and his vendor, learned Counsel appearing for the appellants would submit that the Trial Court should not have passed the decree in favour of the plaintiff, when the plaintiff and his brother are not aware about the exact area, which is sold and purchased by the plaintiff. Therefore, this Second Appeal deserves consideration.

(2.) On the other hand, learned Counsel appearing for original plaintiff relying upon reasons recorded by the Courts below and in particular paras 9,10 and 11 from the judgment of the Trial Court would submit that the Trial Court has meticulously examined all the aspects of the matter and the evidence of each witness has been gone into. In written statement is admitted that the plaintiff is owner of the suit property. Once such admission is given in the written statement, there is no question of entertaining the Second Appeal. It is further submitted that the evidence of the plaintiff has been corroborated by the City Survey Record at Exh.54. Therefore, according to learned Counsel appearing for the plaintiff, there are concurrent findings recorded by the Courts below. Therefore, this Court may not interfere in the Second appeal, since these findings are not perverse and are in consonance with the evidence brought on record by the parties.

(3.) I have given due consideration to the rival submissions. Upon hearing learned Counsel for the parties, I do not see sound reason to accept the contention of the appellants that both the suits should have been tried together. However, I find considerable force in the argument of learned Counsel appearing for the appellants that if the suit property is purchased by the plaintiff from his brother and the brother has received same property in family partition, the brother and the plaintiff should be well aware about said area of the said property. When the plaintiff and his brother were confronted with this query before the Trial Court that, how much area is purchased by the plaintiff from his brother, both of them have stated that they are not aware about the area which is sold and received in the partition. In my opinion, the Trial Court should have examined this aspect and after satisfying itself about the area purchased by the plaintiff from the vendor his brother, then should have proceeded to decide the suit. Therefore, this Second Appeal raises following substantial questions of law :