1 S.A.No.277/05. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.277 OF 2005 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 14.12.2010. 1. This is plaintiffs' Second Appeal. The plaintiffs had filed a suit for simpliciter injunction in respect of suit property bearing Gut No.197 to the extent of 3 hectares and 36 ares. The trial Court dismissed the suit. The plaintiffs preferred an appeal. The appellate Court also dismissed the appeal. 2. Mr.V.I. Thole, learned counsel for the appellant strenuously contended that both the Courts below have not properly appreciated the evidence on record and the case put-forth by the appellant. According to the learned counsel, the 2 S.A.No.277/05. defendant had come with a case that plaintiff is only owner of 94 ares land which he had sold to NIrmalabai. There is no basis for such contention. The plaintiffs have proved through oral evidence so also the mutation entries and the 7/12 extracts filed on record that the plaintiffs are the owners and possessors of 3 hectares 36 ares land that is the suit land. Both the Courts below have perversely considered the evidence on record. The defendants' case ought to have been considered . The learned counsel further submitted that it is just because the earlier measurement was not disclosed, the Courts have taken adverse view of the matter. According to Mr.Thole, learned counsel, the cadastral surveyor can not tell about the actual, physical possession of the parties and as such it was erroneous to rely on the same to discard the case of the appellants. 3. With the assistance of the learned counsel, I have gone through the judgment. The relief of injunction is a discretionary relief. The plaintiff who seeks the relief has to approach the Court with clean hands. Not only the factum of 3 S.A.No.277/05. measurement was not brought to the notice by the plaintiffs, wherein the lands were demarcated and the total property was not shown in occupation of the plaintiffs but even the plaintiffs had suppressed the factum of the sale of 1 hectare (94 ares) of land to Nirmalabai from the suit property. The plaintiffs even did not file the 7/12 extracts after the execution of the said sale deed. The factum of execution of the sale-deed in favour of Nirmalabai on 18.3.2000, is not disputed by the plaintiffs. The plaintiffs further come with the case that said Nirmalabai has reconveyed the property and the defendant No.3 has admitted the said fact in his evidence. The defendant No.3 in his deposition, no doubt, has stated that after he has taken the objection, NIrmalabai has again executed the sale deed but at the same time has stated that Nirmalabai is still in possession of the said area of the land. 4. This was not a case wherein the inquiry into the title was a substantial issue. The only issue involved in the matter was regarding actual physical possession of the suit property as 4 S.A.No.277/05. claimed by the plaintiffs. The Courts taking into account the pleadings and the evidence has come to the conclusion that the plaintiffs have failed to prove their possession over the suit property. The conclusion drawn by the Courts is a possible conclusion. The Second Appeal can not be entertained only on the ground that some other conclusion is also possible. Both the Courts have not framed any issue regarding the area owned by the respective parties. As the issue of title was not concerned in the proceedings, the defence raised by the defendants would not be relevant and the only consideration was about actual physical possession as on the date of filing of the suit in respect of the suit property. 5. In light of the above, the Second Appeal being devoid of any substantial question of law, is dismissed. However, there shall be no order as to costs. 5 S.A.No.277/05. (S.V.GANGAPURWALA,J.) Dt.14.12.2010. asp/office/sa277.05