1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.83 OF 2009 WITH CA NO.4570/2008. Pandit s/o Shamrao Kirwale - APPELLANT VERSUS Tukaram s/o Mahadeo Jogdand - RESPONDENT ***** Mr.NT Bhagat, Advocate for Appellant; Mr.Sanjay Mundhe, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 6th April, 2010. PER COURT : 1) Heard. 2) The unsuccessful defendant, staking claim to the agricultural property as a purchaser, questions the legality of the Judgments of both the courts. 3) The plaintiff sought relief of declaration and injunction against the defendant. He lost it and simultaneously, a Counter claim of 2 the so-called purchaser (appellant herein) was also dismissed. The first Appellate Court in RCA No.67/2000 modified the order and thereby the dismissal is set aside by decreeing the suit. The plaintiff was declared as owner and also in possession of the property. The decree, concerning dismissal of the Counter claim, was confirmed. 4) Mr.Bhagat urged, the suppression of registered agreement of sale in favour of the defendant will provide to demonstrate a substantial question of law and that the defendant/appellant was in possession of the property having so recorded by the court of first instance. 5) Indeed the observation of the Court of first instance about the mutation entry in paragraph 20 calls for criticism. It is not a mutation entry for possession, it was a mutation in respect of creating a charge on the property based on the agreement of sale. The charge, in any eventuality, will not culminate into possession. The second aspect observed by the Court of first instance is that the plaintiff failed to examine Gangaram Kundlik, Kaniram Pawar and Maroti Tukaram through whom he used to get the land cultivated. This observation again is 3 uncalled for. The defendant when staked claim to be in possession was reasonably expected to demonstrate the same. However, barring evidence of defendant alone, there is no whisper anywhere to support his contention. 6) The counter claim for specific performance moved by the defendant was rejected. He did not choose to challenge the same, consequently, the decree of dismissal reached finality. 7) The learned Counsel for the appellant relied to the Judgment of the Apex Court in the matter of Anathula Sudhakar Vs. P.Buchi Reddy (Dead) By L.Rs. & Ors. (2008 (5) ALL MR 451). The Apex Court has observed in paragraph 11.2 - "11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession." 8) The above proposition of law needs no comment. However, the fact disclosed the 4 defendant, in the capacity as purchaser, has certainly failed to establish his possession based on the agreement or even otherwise. Consequently, this judgment will not be of any assistance to the appellant. The Second Appeal does not project any eventuality to formulate a substantial question of law. Consequently, it is sans merit, Second Appeal with CA dismissed. (K.U.CHANDIWAL) JUDGE bdv/sa83.09