1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 523 OF 2008 SECOND APPEAL NO. 523 OF 2008 SECOND APPEAL NO. 523 OF 2008 WITH CIVIL APPLICATION NO. 1394 OF 2008 Shri Yashwant Vishnu Shinde & Anr. ...Appellants (Org. Defendants) Vs. Laxman Avaba Shinde Since deceased through his heirs and legal representatives: 1. Shri Ananda Laxman Shinde ..Respondent Mr. Dilip Bodake, Advocate, for the appellants Mr. Sanjay Prabhu, i/b. Mr. N.V.Bandiwadekar,Advocates, for the respondent. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 2nd September,2008 DATE: 2nd September,2008 DATE: 2nd September,2008 P.C. P.C. P.C. 1. Heard the learned Counsel for both the sides. 2 2. This is the Second Appeal filed by the original defendants. 3. To state in brief, the respondent is the son of original plaintiff - Laxman Shinde. The plaintiff Laxman Shinde filed Regular Civil Suit No.309 of 1997 for perpetual injunction contending that he had purchased the eastern side half share out of the property bearing City Survey No.883 and bearing Grampanchayat property No.5 situated at Village Rethare Khurd, Taluka Karad, District Satara. According to him, the said property is bounded to the north: Grampanchayat Road, to the west: remaining share of the defendants in the same City Survey No.883, to the south: by open land of Bhoir community and to the east, the property of Ganu and house of the plaintiff. According to him, he had purchased the property from Adhikrao, the husband of one Amububai, who was the daughter of one Ganu. According to him, he was in exclusive possession and the defendants had no right over the suit property, but they were trying to interfere in his possession. 4. The defendants contested the suit. According to them, the property was in their possession and the suit for perpetual injunction simpliciter is not tenable. The trial Court dismissed the suit. Therefore, the plaintiff preferred Regular Civil Appeal NO.453 of 2000. 3 The appeal was allowed and the decree of perpetual injunction was granted in favour of the plaintiff and against the defendants. Therefore, the defendants have preferred the Second Appeal. 5. Admittedly, one Nana Shinde had two sons - Vishnu and Ganu. Vishnu had 3 sons viz. Yeshwant (defendant No.1), Keshav (defendant No.2) and one Vitthal. Ganu had only one daughter Ambubai. Ambubai also died. Her husband Adhikrao also died. Her husband Adhikrao, who had become owner of the property allegedly sold the suit property in favour of Laxman Shinde for consideration of Rs.4,000/- in the year 1983. 6. The learned Counsel for the appellants/defendants tried to contend that it was a joint property and therefore, the plaintiff cannot claim exclusive possession over the suit property. The learned Counsel for the plaintiff pointed out that prior to this litigation, Vitthal, who is the brother of the present defendants, had filed Regular Civil Suit No.116 of 1996. In that suit, the present suit property was clearly shown as property of the present plaintiff. On perusal of the decree passed in R.C.S. No.116/1996, which contains the copy of the plaint,it is revealed that Vitthal Shinde had prayed for partition of several properties, including the western side half share of the 4 City Survey No.883. To the eastern side of that property was shown remaining half share of Laxman Shinde, who is the plaintiff in the present litigation. That suit was decreed. In view of this, it is clear that in the litigation between the defendant Nos. 1 and 2 and their brother Vitthal only western half share of City Survey No.883 was shown to be the joint family property of the brothers and eastern half share was shown to be the property of Laxman A. Shinde, the present plaintiff. In view of this, it is clear that the suit property i.e. eastern side half share of City Survey No.883 was not the joint family property of the defendants nor that property was to be partioned amongst the brothers. From this, it is clear that the stand taken by the defendants is not correct. It is purely a question of fact. No substantial question of law is involved in the present Second Appeal. 7. In the result, the Second Appeal stands dismissed. 8. As the Appeal itself is dismissed, the Civil Application No.1394 of 2008 does not survive and stands disposed of accordingly. 5 (J.H.BHATIA, J.) (J.H.BHATIA, J.) (J.H.BHATIA, J.)