1 SA 977.2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 977 OF 2006 Bapurao Eknath Kakde & another .... APPELLANTS VERSUS Sampat Sakharam Kirtak (Died) and another. .... RESPONDENTS Mr. Milind Patil, Advocate for the appellants. CORAM : S.V. GANGAPURWALA, J. DATE : 07/03/2011 ORAL ORDER : 1. Heard the learned counsel for the appellants. 2. This is Plaintiffs’ Second Appeal. 3. The plaintiff’s Suit for perpetual injunction was decreed by the trial Court. The lower appellate Court, in the Appeal filed by the defendant, allowed Appeal and dismissed the Suit of the plaintiff. The plaintiffs have assailed the said Judgment in the present Second Appeal. 4. Mr. Milind Patil, the learned counsel for the appellant contends 2 SA 977.2006 that when an earlier Suit filed by the plaintiff no. 2 was decreed against the present respondent, then in such circumstances, the Court below could not have arrived at contrary conclusion. According to the learned counsel, the presumption would be in favour of continuity of possession and as the earlier Suit was decreed, it should be presumed that the plaintiffs are in possession of the property. The learned counsel further contends that so far admissions given by plaintiff no. 2 are isolated admissions and can not be taken into consideration as against the substantive decree passed by the Court and the other evidence on record. 5. With the assistance of the learned counsel for the appellant, I have gone through the Judgments. 6. No doubt, earlier the plaintiff no. 2 had filed Suit bearing R.C.S. No. 139 of 1986 which was decreed against the present defendants. Thereafter it appears that plaintiff no. 2 sold the property to plaintiff no. 1 and again a fresh Suit was filed by both the plaintiffs for relief of simplicitor injunction. 7. As per Section 41-J of the Specific Relief Act, a person who is not interested in the property, is not entitled for any relief of injunction. 3 SA 977.2006 8. The Courts have discussed the oral evidence of plaintiff no. 2, who unequivocally admitted that the defendant Sampat is in possession of the property and is cultivating the land. Even the Court below has considered 7-B proceedings, wherein the competent revenue authorities have found that the defendant is put in possession of the property. In light of the substantive admissions given by plaintiff no. 2 and the other record, the Court below has come to the plausible conclusion. When the Courts below have found that the plaintiffs have failed to prove their possession over the suit property, no injunction could have been granted. 9. In that light of the matter, no error has been committed by the Courts below. As the Second Appeal is devoid of any substantial question of law, is dismissed, however with no order as to costs. [S.V. GANGAPURWALA, J.] knp/SA 977.2006