SMT. LEELABAI WD/O. TULSHIRAM INGOLE Vs. SAU. KAMLABAI W/O. MOTIRAM BUDH

JUDGEMENT

(1.) Being aggrieved by judgment and decree dated 23.06.1994 passed by Extra Joint District Judge, Amravati in Regular Civil Appeal No. 197/1991 by which the judgment and decree dated 14.08.1991 passed by 2 nd Jt. Civil Judge Junior Division, Amravati in Regular Civil Suit No.585/1989 was set aside and the suit of the appellantplaintiff was dismissed, the present was filed in this Court by the unsuccessful plaintiff.

(2.) Mr. Mishra, learned counsel for the appellant, assailing the impugned judgment and decree passed by the lower appellate Court, contended that the lower appellate court set aside the judgment and decree of the trial court on the ground that the identity of the property was not properly proved by the appellant plaintiff under the sale deed Exh.45 in favour of the appellant. According to Mr. Mishra, this finding is per se perverse since there was no such defence set up by the respondentdefendant in answer to the suit and on the contrary, the defence was that the suit property was bequeathed by Mahadeo, fatherinlaw of the defendant by Will Exh.57 dated 30.11.1983 in favour of her daughter. According to Mr. Mishra, the will Exh.57 was of no avail to the respondent for the simple reason that the suit property purchased by the appellant under the sale deed Exh.45 was the share of Motiram, which he received in the registered partition deed Exh.49 and, therefore, the question of Mahadeo bequeathing the property to his granddaughter does not arise. He then submitted that the transaction of sale deed in favour of the appellantplaintiff did not have presumptive value under Section 60 of the Registration Act and, therefore, it was incumbent on the respondentdefendant to affirmatively prove by appropriate and specific pleadings that the suit property purchased by the appellantplaintiff was not the same. But there was no pleading in that behalf in the written statement. Mr. Mishra, therefore, contended that the lower appellate Court unnecessarily recorded a finding about identity of the property which as a matter of fact and was never in dispute and, therefore, the judgment and decree of the trial Court deserves to be restored.

(3.) Per contra, Mr. P. Y. Deshpande, learned counsel for the respondentdefendant, submitted that the finding of fact recorded by the lower appellate Court about identity of the property was not shown to be perverse. According to Mr.Deshpande, there is a pleading about misdescription or wrong description of the suit property in the sale deed Exh.45. It was for the appellantplaintiff to make verification about the exact details of the property sought to be purchased by the plaintiff from Motiram including the portion sought to be purchased along with correct boundaries. There is a pleading to show that the property claimed by the appellantplaintiff, in fact, belong to Mahadeo and did not belong to Motiram, which would be sufficient to show that suit property did not belong to Motiram, the vendor of the appellantplaintiff. All other things, according to Mr. Deshpande, are matters of evidence and reasonable inference could be drawn from the documents also. He contended that the finding of fact recorded by the lower appellate Court is perverse and illegal. Consequently, he prayed for dismissal of the appeal.