BALIRAM SHAMRAO MOREversusASHOK NAGNATH MORE

2026:BHC-AUG:43594


                                                       1                       1025 SA.109.2026.odt


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                 BENCH AT AURANGABAD.
                            1025 SECOND APPEAL NO. 109 OF 2026

                               BALIRAM SHAMRAO MORE AND ANR
                                          VERSUS
                                    ASHOK NAGNATH MORE

                                                  ...
              Mr. Sushant Baburao Choudhari, Advocate for Appellants / Defendants.
              Mr. Sanjay A. Wakure, Advocate for Respondent / Plaintiff.
                                                  ...

                                            WITH
                             CIVIL APPLICATION NO. 12165 OF 2023
                                        IN SA/109/2026
                                                 ...


                                             CORAM : SANJAY A. DESHMUKH, J.
                                             DATE          :   22nd September, 2026.

              Per Court:

              1            Heard learned Advocates for both the sides at length.



              2            The learned Advocates for the appellants / original

              defendants and respondent / original plaintiff pointed out the pleadings

              and impugned judgment passed by learned District Judge-2,

              Osmanabad in Regular Civil Appeal No.149 of 2015, dated 19 th

              November, 2022, which was preferred against the judgment and

              decree passed by the learned 4th Joint Civil Judge, Junior Division,

              Osmanabad in Regular Civil Suit No.228 of 2010, dated 29 th April,

              2014.
                                      2                        1025 SA.109.2026.odt


3           The plot bearing village Panchayat No.71, out of land

Block No.422, admeasuring 1000 sq.ft, situated at village Wadgaon

(Si), Tahsil and District Osmanabad, is the subject matter of suit and

appeal. The respondent / plaintiff came with the case that appellants /

defendants have encroached upon the suit property by raising tin-

shed.   On the basis of title, he claimed possession of it, and also

prayed for perpetual injunction for not causing obstruction to the

plaintiff’s suit property, which he got as per the order of Tahsil Office,

Osmanabad. The suit was decreed. The Regular Civil Appeal filed by

the appellants / original defendants was dismissed. Therefore, this

Second Appeal has been preferred.



4           The learned Advocate for the appellants/defendants

submitted that Kabala by which suit property was allotted to the

respondent/plaintiff is not proved. The appellants are owner of the

adjacent plot and they purchased it. He submitted that the reasons

and findings of both the Courts are not legal and correct. He submitted

to form the substantial question of law and to grant the interim relief as

per grounds of objections raised in the appeal.



5           The learned Advocate for the respondent / plaintiff strongly

opposed the appeal and submitted that there are concurrent findings in

favour of the respondent / plaintiff. As per the order of the Tahsildar,
                                      3                      1025 SA.109.2026.odt


the respondent / plaintiff is owner and possessor of the suit property.

The evidence of Kabala Exhibit-44 is not disproved by the appellants /

original defendants. He submitted that mere possession without title

cannot be protected. He, therefore, prayed to dismiss the appeal as no

substantial question of law arises for determination.



6           On perusal of both the judgments and after considering

the submissions of both the sides, this Court found that the impugned

judgment is well reasoned. The title of the plaintiff is based on the

Kabala at Exhibit -44 / i.e. an order passed by the Tahsildar. It is a

public document and proof of it is dispensed with, as there is

presumption as to its genuineness, as per Section 79 of the Indian

Evidence Act, 1872, corresponding to Section 78 of the Bharatiya

Sakshya Adhiniyam, 2023. As per said Sections, though there is

presumptive value to the Kabala at Exhibit-44 / i.e. an order of the

Tahsildar, though it is rebuttable presumption. The onus lies upon the

appellants / defendants to rebut it. The defendants failed to disprove

the evidence of plaintiff. The learned Trial Court and the Appellate

Court have given convincing and acceptable reasons in favour of the

respondent / plaintiff.   There is no substance in the grounds of

objections raised in the Second Appeal. No substantial question of law

arises for determination as there are concurrent findings on facts in

favour of respondent / plaintiff. The appeal deserves to be dismissed.
                                           4                        1025 SA.109.2026.odt


      The Second Appeal is, therefore, dismissed in limine.



      7           Civil Application No.12165 of 2023 of 2026 filed for stay to

      the execution of the impugned judgment and award is disposed of.




                                           [ SANJAY A. DESHMUKH, J. ]
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