1 SA 237.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 237 OF 2010 Pandharinath S/o Suryabhan Gaware & Oths. .... APPELLANTS V E R S U S Radhakishan S/o Kaduba Gaware .... RESPONDENT Mr.S.V.Advant, Advocate for the appellant. Mr.V.P.Latange, Advocate for the respondent. -------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 05/05/2011 ORAL ORDER : 1. This is an Appeal by the original defendants. The plaintiff had filed Suit for injunction restraining the defendants from interfering in his possession over the suit lands i.e. G.Nos. 43,44 and 45. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court allowed the Appeal and decreed the Suit of the plaintiff, thereby clamped injunction against the defendants from interfering in the possession of the plaintiff over the suit lands. Aggrieved thereby, the defendants have assailed the said Judgment and decree in the present Appeal. 2 SA 237.2010 2. Mr. S.V. Advant, the learned counsel for the appellants strenuously contends that in fact the plaintiff is owner of G.No. 43 only and has no right, title and interest in G.Nos. 44 and 45. As such, in view of Section 41 ( j ) of the Specific Relief Act, the plaintiff does not have any locus standi to claim injunction. The learned counsel further contends that the lower appellate Court has relied on the Map of the T.I.L.R. without recording the evidence of the said T.I.L.R. In view of Section 83 of the Indian Evidence Act, the Map is not directly admissible in evidence unless the person who has carried out the measurement and prepared Map proves the same by oral evidence. The learned counsel further contends that as against the documentary evidence, the Courts could not have relied on the oral evidence and arrived at the conclusion about the possession of the plaintiff over the suit lands. The learned counsel further contends that even the lower appellate Court has observed that the path exists from the bandh of the said lands G.Nos. 43,44 and 45, still has clamped injunction against the defendants, which is perverse. 3. Per contra, Mr. Latange, the learned counsel for the plaintiff submits that dehors the Map prepared by the T.I.L.R. the other attending circumstances and the evidence on record is sufficient to come to the conclusion that there is no path way from the land of the plaintiff. If at all 3 SA 237.2010 there is a way, that is from the northern banch of the said lands. According to the learned counsel, even that is not proved. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. A person in possession can be said to have interest in the property. The plaintiff had specifically pleaded and led evidence to the effect that the plaintiff is the owner of land G.No. 43, possesses and cultivates the land G.Nos. 43, 44 and 45 though the said lands G.Nos. 44 and 45 stands in the name of plaintiff’s father. The defendants while cross examining the plaintiff, have not even given a suggestion to the plaintiff that he is not in possession of G.Nos. 44 and 45. In a wake of such substantive evidence, the mere revenue entries could not prevail. More over, the father of the plaintiff has also not disputed the possession of the plaintiff over the suit lands. Even otherwise when oral evidence has been led and the defendants even did not give suggestion that the plaintiff is not in possession of the suit lands, meaning thereby that the evidence of the plaintiff to that effect has gone unchallenged. As such, it can be safely concluded that the plaintiff has locus standi to file Suit in respect of all the suit lands and has interest in the suit properties, interalia bar of Section 41 4 SA 237.2010 ( j ) of the Specific Relief Act would not be attracted. 6. The contention that the Map of T.I.L.R. would not be directly admissible in evidence without the proof of the same, is worth considering. In view of Section 83 of the Evidence Act, the Map drawn by the T.I.L.R. for the specific purpose would not be directly admissible in evidence, unless and until a person who has drawn the Map is examined in the Court. As such, the reliance placed on the said Map by the lower appellate Court was mis-placed. However, the said Map was not the sole basis for the Court below to arrive at the conclusion. Even the trial Court while concluding has specifically observed that even the path way as pleaded by the defendants through the suit lands is not proved by the defendants. The lower appellate Court has also relied on the panchanama, report of the Commissioner, 7/12 extracts and the oral evidence on record and has come to the conclusion that no path way exists from the suit lands and the way would be from the northern side of the suit lands i.e. from the northern bandh of the suit lands. In such circumstances, there was no error to clamp injunction against the defendants from interfering in the possession of the plaintiff over the suit lands or restraining the defendants from creating a new way/path through the suit lands. That would not mean that the defendants had no right to use the way on the northern bandh of the suit lands. 5 SA 237.2010 7. In view of the above, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 8. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 237.2010