* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 747 OF 2005 W I T H CIVIL APPLICATION NO. 1269 OF 2005 IN SECOND APPEAL NO. 747 OF 2005 Anusaya Pandurang Gurav & Ors. .....Appellants vs. Govind Vithal Pujare .....Respondent ========= Mrs.S.A.Mudbidri,advocate for appellants. Respondent and advocate absent. Coram : Smt. R.P.SondurBaldota, J. Date : 19thJune 2009. PC :- 1. This Second Appeal arises out of the order dated 4th February, 2003 passed by the Additional District Judge, Sindhudurg, Oros in Regular Civil Appeal No.127 of 1998 challenging correctness and legality of the judgment and decree dated 29th October, 1998 in Regular Civil Suit No.100 of 1999 passed by the Civil Judge Junior Division, Kankavli. 2. By Regular Civil Suit No.100 of 1991 the appellant sought a permanent injunction to restrain the respondent from disturbing his possession and enjoyment of the suit properties which are * 2 * forty four in number. By prayer clause (b) he sought possession of the said properties. The two prayers are contradictory with each other. However, as we see peruse judgments of both the courts below it is seen that the judgments discuss only the first prayer and not the second prayer. In his appeal before the district court, the appellant does not challenge non- consideration of the second prayer by the trial court. This can only mean that the appellant had pressed the suit only in respect of the first prayer. Therefore, the Second Appeal can only and must be restricted to the first prayer of permanent injunction. The appellant claims that the suit properties actually form part of joint family properties and that they had been mutated in the name of one Anusayabai during her lifetime only for the sake of convenience. Neither the pleadings nor the evidence nor the arguments specify the nature of convenience. There is a concurrent finding of the two courts below that the appellant is not in possession of any of the properties. I have perused the judgments of both the courts below supporting the concurrent finding. The inference drawn as regards the possession is a probable inference. There is no infirmity whatsoever with it. Consequently, there is no substantial question of law arising as regards the dispute raised in the proceedings. * 3 * 3. Mrs.Mudbidri, the learned counsel for the appellant submits that the trial court and the appellate court ought to have held that the will of Anusayabai on the basis of which respondent claims to be entitled to and in possession of the suit properties has not been established at all. This aspect is not required to be considered as the suit is simplicitor for injunction based on possession and there is concurrent finding of both the courts below that the appellant is not in possession of the suit properties. 4. She has next sought to argue that the trial court and the appellate court have not considered the second prayer in the plaint. It has already been observed that the two prayers are contradictory to each other. The plaint shows that the two prayers are not made alternative to each other. In that case, it was necessary for the appellant to elect one of the prayers for prosecuting the suit. Apparently, the appellant has elected the first prayer and has been unsuccessful in getting the same. In the circumstances, the Second Appeal is dismissed. 5. With the dismissal of the Second Appeal, Civil Application No.1269 of 2005 does not survive. The same is accordingly disposed off. (Smt.R.P. SondurBaldota,J.) * 4 *