-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.762 OF 2007 WITH CIVIL ALPPLICATION NO.1432 OF 2007 Prakash Annapa Isapure & Ors. ..Appelants Versus Shri Appasaheb alias Battu Bapu Saheb Inamdar & Ors. ..Respondents Mr. S. Misal, for the Appellants. Mr. N.J. Patil, for Respondent Nos. 1 to 3. CORAM : R.M.SAVANT, J. CORAM : R.M.SAVANT, J. CORAM : R.M.SAVANT, J. DATED : 14TH AUGUST,2008 DATED : 14TH AUGUST,2008 DATED : 14TH AUGUST,2008 P.C. P.C. P.C. . This Second Appeal is filed against the judgment and decree dated 21st July, 2007 passed by the learned District Judge-II, Sangli, by which the judgment and decree passed by the trial Court in Regular Civil Suit No.392 of 1988 dated 31st October, 1996 came to be confirmed. 2. The Appellants are the original plaintiffs in Regular Civil Suit No.392 of 1988, which they had filed for permanent injunction restraining the Defendants from obstructing their possession over the suit property being land bearing City Survey No.1121 admeasuring 8977.3 sq. meters situated at Miraj. It was the case of the Plaintiffs that their father Annapa had taken the suit premises on lease from the father of the Defendants Bapusaheb on 30th July, 1980. The rent fixed for the said premises was Rs.2,500/- for a period of 10 years. It was further the case of the plaintiffs that they are in possession since last 50-60 years as tenants in the -2- said premises and that they are in possession of the suit premises on the basis of the said Agreement of lease dated 30th July, 1980. On account of the fact that the defendants were obstructing the Plaintiffs and trying to dispossess them on 18th Novemebr, 1988 when they came with a big mob that the Plaintiffs filed the said suit as on 18th November, 1988. 3. The Defendants field their written statement and denied that there was any Agreement of lease between the father of the plaintiffs and the father of the defendants. It was the case of the defendants in the said written statement that the plaintiffs are in possession of some portion out of the Southern portion of the said City Survey No.1121 and that the Northern portion is under the enjoyment and Vahiwat of the defendants. It was further the case of the defendants that the defendants have their private burial place in the Northern portion. It was denied by the defendants that the entire survey No.1121 admeasuring 8977.3 sq. mtrs was in possession of the plaintiffs. It was further averred in the written statement that some portion of the City Survey No.1121 admeasuring about 6024 sq. meters was acquired under the provisions of the Urban Land Ceiling Act, 1976 and handed over to the Miraj Municipal Council on 11th April, 1986. It was, therefore, the case of the Defendants that no case for grant of any relief was made out by the plaintiffs in the said suit. 4. Parties went to trial. The trial Court on the -3- basis of the evidence that was before it came to a conclusion that though the plaintiffs have relied upon the rent receipts Exhibits 94 to 96, the plaintiffs have not been able to prove the said rent receipts by evidence known to law. The trial Court on the basis of the evidence of P.W.1-Prakash came to the conclusion that the plaintiffs resided in City Survey No.1121/4 situated towards the Southern side of the suit property. The trial Court also on the basis of the property extract of City Survey No.1121(4) wherein it has been recorded that the area of 6024.9 sq. meters out of the suit property has been acquired under the Urban Land Ceiling Act and its possession was handed over to the Miraj Municipal Council on 11th April, 1986, as also on the basis that private burial ground of the defendants along with tomb was on some portion of the suit property came to the conclusion that the Plaintiffs have not proved the exact area of the said City Survey number over which they claim possession. The trial Court has also observed that though the defendants have proved that they have their private burial place in the said City Survey No.1121 they have also not been able to prove the exact area in their possession. The trial Court, therefore, observed that both the parties, i.e. the plaintiffs and defendants have failed to prove the exact area in their possession in the said City Survey No.1121. However, the trial Court held that since the plaintiffs have not proved the exact area in their possession in City Survey No.1121 the plaintiffs were not entitled to the discretionary relief of injunction sought by them in the said suit. The trial Court, -4- therefore, by judgment and order dated 31st October, 1996 dismissed the said suit. 5. Aggrieved by the dismissal of their suit by the trial Court the plaintiffs filed Regular Civil Appeal No.588 of 1996. The Appellate Court on the consideration of the evidence that was on record came to the conclusion that the findings recorded by the trial Court as regards the case of possession of the plaintiffs could not be faulted with. The Lower Appellate Court was of the view that the plaintiffs in not bringing the fact of acquisition of 6024 sq. meters under the U.L.C. Act have suppressed a material fact whilst claiming the discretionary relief of injunction. The Lower Appellate Court, therefore, dismissed the said Appeal and confirmed the findings of the trial Court. 6. Both the Courts below have, therefore, concurrently held against the Plaintiffs that they are not entitled to the discretionary relief of injunction as they failed to prove the exact area in their possession in the said City Survey No.1121. Both the Courts below have recorded findings of fact. In my view the challenge raised in this Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. 7. In view of the dismissal of the Second Appeal the Civil Application does not survive and is disposed of as such. -5- (R.M. SAVANT, J.) (R.M. SAVANT, J.) (R.M. SAVANT, J.)