1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1244 OF 2004 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. N.K.Kakde, Advocate for the appellant. Mr.U.R.Awate, Advocate holding for Mr. S.B.Talekar, Advocate for respondent. ............................. CORAM : S.V. GANGAPURWALA, J. DATE : 16/11/2010 PER COURT : 1. This is defendants’ Second Appeal. 2. The present respondent had instituted Suit for injunction in respect of House No. 70 on the ground that the plaintiff is owner of the said property. 3. The Trial Court dismissed the Suit for injunction holding that in view of the evidence of P.W. 3, it is proved that defendant no. 5 is in possession of the property. The plaintiff preferred 2 Appeal before the District Court. The District Court allowed the Appeal and set aside the Judgment and decree of the Trial Court. The defendants have assailed the said Judgment in the present Appeal. 4. Mr. Kakde, the learned counsel for the appellant strenuously submitted that ownership and possession are two distinct aspects. The defendants even if does not prove ownership, but as they have proved possession, they can not be evicted without following due process of law interalia the plaintiff would not be entitled for injunction. Mr. Kakde, the learned counsel further contended that the Trial Court has considered the evidence of the plaintiff’s own witness, who is also the Gram Sevak and had come to the conclusion that defendant no. 5 is occupying the suit property. The lower appellate Court has not considered the said evidence in its correct perspective. Mr. Kakde, the learned counsel submitted that the lower appellate Court has perversely appreciated the evidence, which raises the substantial question of law. When the plaintiff’s own witness has deposed against him, no further proof would be required to come to the conclusion that the defendants are in actual physical possession of the suit property. 5. Per contra, Mr. Awate, the learned counsel holding for Mr. S.B. Talekar, the learned counsel for the respondent contends that there is absolutely no substantial question of law involved in the matter in as much as the case is based on appreciation of 3 evidence. The evidence of P.W. 3 can not be considered in isolation. His total evidence will have to be considered, which shows that he has no knowledge of the exact location of the house. He has further contended that even the Trial Court, who had dismissed the Suit, had come to the conclusion that the plaintiff is owner of the suit property, but merely on some lines in cross examination of the deposition of P.W. 3, had arrived at erroneous conclusion that defendant no. 5 is in possession of the suit property. 6. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments delivered by both the Court. 7. Even the Trial Court has held that the plaintiff has proved that he is owner of the suit property. The only question is about the actual physical possession. The defendants even contended that House No. 60 and present house No. 70 are one and the same. The Court has discussed that the same are separate entities. The lower appellate Court on the basis of the evidence has come to the conclusion that the plaintiff has proved that he is in possession of the suit property and that the suit property is not the totally constructed property, but is having four walls and there is open space in between. It is nobody’s case that they reside in the suit property. If it is an open area, then the plaintiff is presumed to be the possessor of the property. But, even otherwise on 4 appreciation of the evidence, the Court has found that the plaintiff is in possession of the property. The said finding arrived at is possible finding. 8. In that light of the matter, the same does not give rise to the substantial question of law. As such, Second Appeal is sans substantial question of law, stands dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, the Civil Application does not survive and is disposed off. [ S.V. GANGAPURWALA ] JUDGE knp/SA 1244.04