1 S.A. No 604.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.604 OF 2010 Shivaji S/o Bala Kakne .. APPELLANT VERSUS Machindra S/o Bala Kakne & another ...RESPONDENTS ... Shri. P.V. Langhe, Advocate for the appellant ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is Plaintiff’s Second Appeal. The plaintiff had filed a suit for simplictor injunction on the ground that the plaintiff is in exclusive possession of suit land. The trial Court dismissed the suit of the plaintiff. The plaintiff preferred an appeal. The appellate Court also dismissed the appeal and confirmed the Judgment and Decree passed by the trial Court. 2 S.A. No 604.2010 2. The learned Counsel for the appellant strenuously contended that the plaintiff has proved that he is in exclusive owner of the suit property and he was exclusive owner of the suit property and his possession needs to be protected and he is entitled for injunction. For the said purpose the learned Counsel relied on the Judgment of the Apex Court in case of Rame Gowda (D) by LRS. V/s. M. Varadappa Naidu (D) by L.RS. & another, reported in AIR, 2004 SC 4609”. 3. The learned Counsel further contended that, the plaintiff has proved the theory of oral partition as it was a case of oral partition there was no question of any document. Even the 7/12 extract shows the exclusive possession of the present appellant. The learned Counsel further contended that PW-2 is examined to prove the oral partition as contended by the plaintiff. In such circumstances, the plaintiff was entitled for injunction. 4. With the assistance of learned Counsel 3 S.A. No 604.2010 for the respective parties I have gone through the judgments delivered by both the Courts below. Both the Courts on appreciation of evidence have categorically come to the conclusion that plaintiff has failed to prove the theory of oral partition. The possession of the plaintiff was as a Karta being an elder one. Even in the proceedings before the Additional Collector, regarding the revenue entries, the mutation entry No. 1052 was cancelled and mutation entry No. 288 was confirmed. The mutation entry No. 288 shows the possession of the plaintiff as a Karta of the joint family. 5. It is settled law that the possession of one is on behalf of and for other co-owners. The Judgment of the Apex Court relied by the learned Counsel in a case of“Rame Gowda (D) by LRS. V/s. M. Varadappa Naidu (D) by L.RS. & another, reported in AIR, 2004 SC 4609” referred supra, is of no assistance to the appellant for the reason that in the said case a trespasser was in settled possession, and the Apex Court held that the trespasser in settled possession is 4 S.A. No 604.2010 entitled for injunction and he cannot be dispossessed without following due procedure of law. In the present case, the possession of the plaintiff is as a karta of joint family meaning thereby that it is on behalf of other the co- sharers and no injunction could have been clamped against co-sharers/co-owners. 6. In the light of the above, the Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*