-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 450/2008 Sou. Rajni Kewalram Kirnapure - versus- Tarabai Laxman Kamble ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 29, 2009. Heard Shri N.D. Khamborkar, Advocate for appellant and Shri M.A. Bapat, Advocate for respondent. The Original Plaintiff challenges reversing Appellate Court judgment. Contention is Lower Appellate Court has erroneously held that purchase of suit property by appellant / plaintiff itself has not been established. Attention is invited to consideration of this aspect by the Trial Court in its judgment and also to paragraph nos.15 and 16 of the judgment of Lower Appellate Court. Advocate Shri Bapat, for respondent states that as Lower Appellate Court found that Well of present respondent was already situated in the area alleged to have been encroached, its possession was -2- never parted and as such there was no encroachment and the appellant / plaintiff failed to prove her ownership over the said portion. Perusal of paragraph no.16 reveals that the alleged portion was in possession of Tarabai even prior to 13.03.2000 and this has been found on the basis Well which was existing on the said portion. This consideration is not shown to be either erroneous or perverse. It is apparent that possession of said portion was therefore with Tarabai and that after, execution of sale deed also plaintiff never got possession of that portion. Husband of plaintiff Tarabai accepted in cross examination that he did not get possession after conducting measurement. It is therefore, apparent that consideration of issue by the Lower Appellate Court is neither erroneous nor perverse. No substantial question of law therefore arise in the appeal for consideration. Second Appeal is thus dismissed. No cost. Advocate Shri Khamborkar, for appellant states that interim order already operating in the matter be continued for a period of 6 weeks, so as to enable the appellant to approach the Hon'ble Apex Court. Advocate Shri Bapat, fairly gives no objection. In the circumstances, order protecting the appellant and operating as on today, to continue for a period of -3- 6 weeks more, and shall cease to operate automatically thereafter. JUDGE Rgd.