1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.346 OF 2009 Devidas s/o Ganpatrao Khandagale, R/o. Bhendegaon, Tq. Mukhed, District Nanded and another. ... Appellant versus Ramrao s/o Sheshrao Khandagale, R/o. Bhandegaon, Tq. Mukhed, District Nanded.` ... Respondent Mr. M. V. Deshpande, Advocate for the appellants. CORAM : K.K. TATED, J. RESERVED ON: 11 /06/2009 PRONOUNCED ON:24/06/2009 PER COURT : 1. Heard learned Counsel for the appellants. 2. Present Second appeal is filed by the original defendants challenging the judgment and decree dated 17-12-2008 passed by Ad hoc District Judge-1 Kandhar in 2 R.C.A. No. 26/2005 arising out of the jugment and decree dated 27-04-2005 passed by the Civil Judge, J.D. Mukhed in R.C.S. No. 82/2001. The respondent herein above filed R.C.S. No. 82/2001 for declaration of ownership with issuance of perpetual injunction order against the appellants restraining them from interfering and obstructing peaceful possession of respondent's suit land Survey No. 27 admeasuring area to the extent of 2 Hectors 48 Ares situated at village Bhendegaon, Tal. Mukhed. It is the case of the respondent that he is the owner and possessor of the suit property. The appellants have denied the ownership and possession of the respondent. It is the case of the respondent that he is the owner and possessor of the suit property to the extent of 2 Hectors 48 Ares. It is the case of the respondent that the appellants started obstructing respondent's possession over the suit land and tried to encroach upon the suit property. In support of his contention about possession of the suit property, the respondent relied on 7/12 extract at Exh. 4/1 and evidence of other witnesses. 3. On the other hand, it is the case of the appellants that they are owners and in possession of land Survey No. 27 area 3 admeasuring 7 Acres 14 Ares. It is the case of the appellants that the respondent has denied their ownership and possession to the extent of 7 Acres 14 Ares of land. In support of their contention, the appellants examined D.W. No. 3 Gajanan and also filed 7/12 extract to show that they are in possession of Survey No. 27 to the extent of 7 Acres 14 Ares . Considering the evidence on record, the trial Court held that the respondent proved that he is the owner and in possession of the suit land. The trial Court considering the evidence adduced by respondent in the form of 7/12 extracts and oral evidence of the witnesses, decreed the suit and directed the appellants by issuing perpetual injunction not to interfere and obstruct to the peaceful possession of the respondent over the suit land as described in the plaint. 4. Being aggrieved by the said judgment and decree dated 27-04-2005, the appellants preferred R.C.A. No. 26/2005 in the Court of Additional District Judge Kandhar on the ground that the lower Court failed to appreciate oral and documentary evidence tendered by both the parties and wrongly came to the conclusion and decreed the suit of the respondent. The appellants contended before the lower 4 appellate Court that the respondent failed to adduce evidence to prove that he has received 2 Hectors 48 Acres land in partition and he is in actual possession to the extent of 2 Hectors and 48 Ares land. It is the case of the appellants that the respondent only relied on entry of 7/12 extract. On the basis of these submissions, the appellants prayed before the appellate Court to allow the appeal preferred by them, with costs by setting aside the judgment and decree passed in R.C.S. No. 82/2001 dated 27/04/2005 passed by Civil Judge, J.D. Mukhed. The lower appellate Court on the submissions of the parties raised following points for determination. "(1) Had the plaintiff prove his ownership and possession over the suit portion? (2) Have the defendants prove that they are in possession of 7 hectares 14 Ares land from survey No. 27? (3) Are the findings of the learned Civil Judge erroneous in facts and law and deserve to be set aside? (4) What order?" 5. The lower appellate Court by judgment and decree dated 17-12-2008 dismissed the appeal preferred by the appellants here-in-above with costs. Being aggrieved by the said 5 judgment and decree passed by the lower appellate Court dated 17-12-2008, the appellants, original defendants, preferred present Second Appeal on the ground that when by way of measurement, the possession of appellants is established for more than several years, whether the respondent is entitled for injunction against the appellants. Learned Counsel appearing on behalf of the appellants submitted that both the Courts below failed to appreciate the evidence on record for coming to the conclusion that the respondent is entitled to injunction restraining the appellants from obstructing his possession over the suit land to the extent of 2 Hectors 48 Ares from Survey No. 27. He submitted that the respondent failed to adduce any cogent evidence to show that he was entitled to injunction against the appellants. Learned Counsel appearing on behalf of the appellants further submitted that though the appellants adduced evidence to prove that they were in possession of land admeasuring 7 Acres 14 Ares from Survey No. 27, both the Courts wrongly negated their contention. 6. I have gone through the orders passed by both the Courts below. Both the Courts considered documents on record i .e. 6 7/12 extracts and oral evidence and came to the conclusion that the respondent is entitled to injunction restraining the appellants from interfering with his possession over the suit land. Except following question of law, no other substantial question of law is raised by the appellants in the present Second Appeal. The only substantial question of law raised in this matter is : "When by way of measurement, the possession of defendants is established for more than half, could the plaintiff be entitled for injunction within portion?" 7. Both the Courts appreciated evidence on record. In Para. 10 of the judgment, the lower appellate Court appreciated evidence on record and held that the appellants failed to make out any case to interfere with the judgment and decree passed by the trial Court dated 27-04-2005. For formulation of substantial question of law, question of law must be of such character that it pertains to gray area in which law is not settled. Once it is found that law is settled by the Apex Court and is also considered by the High Court in similar cases then it cannot be said that same is substantial question of law involved. In the present case, 7 both the Courts appreciated evidence on record and held that respondent proved his possession in respect of the suit property and also proved that the appellants were trying to obstruct his possession. The appellants have not indicated any legal flam in the appreciation of evidence on record by the two Courts below. Therefore, no question of law, leave apart substantial question of law, is involved in this appeal. Therefore, I do not find any substance in the present Second Appeal. The Second Appeal is dismissed summarily. ( K.K. TATED, J.) sut/JUN09/SA346.09