IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 1 OF 2008 SMT. ANUSUYA SADASHIV VAZIR AND ANR., ... Appellants Versus SHRI. PREMANAND NAGESH SHET SHIRODKAR AND 3 ORS., ... Respondents Mr. R. G. Ramani, Advocate for the Appellants. Mr. D. Patkar, Advocate for the Respondents. Coram:- N. A. BRITTO, J. Date:- 16th July, 2008 P.C.:- Heard learned Counsel on behalf of both parties. This is Defendants' Second Appeal arising from R.C.S. No.29/96/D. There is no dispute that the Plaintiffs are the owners of a property known as plot No.7 admeasuring 566 sq. meters, Plaintiffs having purchased the same by sale deed dated 18-1-1973. The dispute between the Plaintiffs and the Defendants was as regards two rooms existing in the said property. The claim of the Defendants was that they had purchased 30 sq. meters of the said property which claim of the Defendants has been held against them by both the Courts below. The next dispute between the parties was as to who had constructed the said two rooms each of the parties claiming that they had constructed the same. The learned trial Court came to the conclusion in answering Issue No.7, which was framed, that the said two rooms were constructed by the Defendants. The learned first Appellate Court has not given any particular finding as to who constructed the said two rooms but has come to the conclusion that as the Plaintiffs are the owners of the property they are deemed owners of the suit rooms standing in the said property. Here, it may be noted that the Plaintiffs had filed the suit with the allegation that they had taken over the possession of the said rooms at the time of filing of the suit which was filed on or about 15-3-1996. Although, the finding of the first Appellate Court that the suit rooms were not constructed by the Defendants would be open to challenge, the fact remains that the said rooms were not in the occupation of the Defendants. This finding has been given by the learned first Appellate Court on the basis of the admission of the Defendants and the evidence by way of photographs produced. The Plaintiffs in their evidence through PW1 had stated that the Defendants had vacated the said two rooms and they were in possession of the same. The Defendants through DW1 had also stated that they were in possession of the said two rooms but had admitted that the general stores was discontinued in the year 1996. In other words, it could be assumed that the general stores was discontinued at the time of filing of the suit. Moreover, DW1 had also admitted that part of the suit structure had collapsed and part of it was intact but another part was empty. The learned first Appellate Court noted that DW1 was shown two photographs which DW1 admitted to be of the suit rooms and the said two photographs had shown that the suit structure was not occupied and was also partly open to her. The learned trial Court therefore concluded that the evidence showed that the Defendants were not in possession of the suit rooms from the year 1996, when the suit was filed. The contention of learned Counsel of the Defendants is that the Defendants were in possession of the suit rooms and the suit filed merely for declaration and injunction without recovery of possession could not be decreed. Admittedly, the Plaintiffs are the owners of the suit property. The Defendants failed to prove that they had purchased 30 sq. meters of the said property on which the said two rooms were constructed by them. The Defendants, as per the findings of the first Appellate Court, which findings are based on the evidence on record, were not in possession of the suit rooms. The Defendants had not claimed any other right in relation to the said two rooms and considering the same, in my view, the learned first Appellate Court was justified in decreeing the suit for declaration as well as for injunction. In the light of the above, no substantial questions of law as framed in para 10 or otherwise arise in this Second Appeal. This Second Appeal is therefore hereby dismissed in limine. N. A. BRITTO, J. RD.