1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.288/2010 VASANT LAXMANRAO NASARE & ONE ANOTHER ..VS.. DEEPAK GULABRAO NASARE & ONE ANOTHER Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order C ORAM : SMT. VASANTI A NAIK, J. DATED : 8 th JULY, 2010 . Heard Shri Deshpande, the learned counsel for the appellants. The appellants are the original plaintiff. A suit was filed by the plaintiff for permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiffs over the suit site by digging pits in the same. According to the plaintiffs, the suit property was a vacant plot. The plaintiffs also sought a mandatory injunction against the defendants to restore the suit plot to its original position as the defendants had dug pits of 2 ft width and 2 ft depth for construction of a plinth. The defendants denied the claim of the plaintiffs. They further denied that the plaintiffs were the owner of the suit property. The defendants filed a counter claim claiming declaration that the sale deed executed in favour of plaintiffs on 17.3.1981 was not valid and that they were the owner of the suit property. The defendants also sought an injunction restraining the plaintiffs from disturbing the possession of the defendants over the suit property. On an appreciation of the evidence on record, the trial court decreed the suit of the plaintiffs. The trial court held that the plaintiff had proved that they were in exclusive possession of the suit site. The Court held that the defendants had been unsuccessful in proving 2 that the sale deed dated 17.3.1981 was void or voidable. The court held that the counter claim was not filed within the prescribed period of limitation. The first appellate court on re-appreciation of the evidence on record held that the plaintiffs had been unsuccessful in proving their exclusive possession over the suit site. The first appellate court also held that the plaintiffs had been further unsuccessful in proving that the defendants had obstructed the plaintiffs' possession over the suit site. The other issues were answered by the first appellate court in favour of the plaintiffs and against defendants. Since the other issues were answered in favour of the plaintiffs, by the first appellate court and the trial court, it is the case of the plaintiffs that the first appellate court could not have reversed the findings recorded by the trial court on the issue of exclusive possession of the plaintiff over the suit site and the obstruction by the defendants. On hearing the learned counsel for the appellants and on perusal of judgments of both the courts, it appears that the trial court had missed some important admissions of plaintiffs in their cross- examination which falsified the claim of the plaintiffs that the plaintiffs were in exclusive possession of the suit property. The first appellate court noted that the plaintiff no.1 had admitted in his cross examination in clear terms that there was nothing on the suit site to indicate the possession of the plaintiffs over the suit site. The plaintiffs then admitted in his cross examination that after removing the barbed fencing around the suit site, defendants had kept sand and iron on the suit site and had taken the possession of the suit site. The first appellate court rightly held that this single admission of one of the plaintiffs was good enough to hold that the plaintiffs were not in exclusive possession of the property, but the property was in the possession of the defendants. Moreover, it is necessary to note that 3 the plaintiffs had pleaded in the plaint that the defendants dug pits of 2 ft width and 2 ft depth for construction of the plinth and despite the request from the plaintiffs, the defendants did not restore the position of the property as it existed before digging of the pits. The finding recorded by the first appellate court on the issue of possession is a pure finding of fact based on a proper appreciation of the material evidence on record. There were admissions of the plaintiffs in his cross-examination which falsified the claim of the plaintiffs that they were in exclusive possession of the suit property. The first appellate court held that the suit was simplicitor for grant of permanent injunction and the plaintiffs had not sought for possession of the suit property. In such circumstances, there was no alternative for the first appellate court than to dismiss the suit of the plaintiffs as it was filed only for grant of permanent injunction and it was found that the plaintiffs were not in possession of the suit site. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. JUDGE SMP.