-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.929 OF 2002 APPEAL NO.929 OF 2002 APPEAL NO.929 OF 2002 Akaram Ganpati Gotkhinde ...Appellant vs. Ganesh Baburao Patil & Ors. ...Respondents Mr.S.M.Railkar for the Appellant Mr.Ashok Chougule for Respondent Nos.1 to 3 CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 13, 2008. : FEBRUARY 13, 2008. : FEBRUARY 13, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate for the Appellant. The Appellant is the original plaintiff. The Appellant filed a suit for declaration and injunction. The challenge in the suit is to the sale deed executed by the second defendant in favour of the first defendant. The contention is that the said sale deed is illegal and not binding on the Appellant as the same is against the provisions of Bombay Tenancy and Agricultural Lands Act, 1948. The case of the Appellant is that the first defendant-first Respondent was obstructing his possession on the basis of the said sale deed and hence, the suit for declaration and injunction has been filed. The suit was dismissed by the trial court by relying upon the certain order passed under the provisions of Maharashtra Debt Relief Act,1975 which confirmed by this court. An Appeal preferred by the Appellant-plaintiff has been dismissed by holding that the Appellant-plaintiff was not in possession on the date of -2- institution of the suit. 2. The submission of the learned Advocate for the Appellant is that the Appellant is claiming to be an agricultural tenant in respect of the suit property and the issue regarding tenancy is pending in this court in the form of a Writ Petition challenging the order passed by the Maharashtra Revenue Tribunal. He submitted that there is enough material on record to show that the Appellant-plaintiff continues to be in possession. He submitted that the sale deed was obviously hit by the provisions of said Act of 1948. 3. I have carefully considered the submissions. The courts below and especially the Appellate Court has referred to the order passed by the Authorities under the Maharashtra Debt Relief Act,1975 in favour of the second Respondent-second defendant. On the basis of the said order, the possession of the suit land was handed over by the Village Talathi to the second Respondent. The Appellate Court has referred to the order passed by this court confirming the order passed under the said Act of 1975 in favour of the second Respondent. The courts below have accepted the evidence of the Village Talathi. As the original record has been destroyed, secondary evidence in the form of a xerox copy of the possession receipt was allowed to be adduced. The possession receipt shows that the Appellant was dispossessed on the basis of the order -3- passed under the provisions of the said Act of 1975 and that is the reason why the courts below have held that the Appellant was not in possession on the date of institution of the suit. As the Appellant was not in possession on the date of institution of the suit, the suit simplicitor for declaration and injunction cannot be entertained without there being a prayer for possession. 4. In view of concurrent findings of fact recorded by the courts below on the issue of possession, no substantial question of law arises. Second Appeal is dismissed with no order as to costs. JUDGE JUDGE JUDGE