1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4843 OF 2009 Mrs. Kacharabai w/o Kashinath Rithe, Aurangabad, Through Power of Attorney Mr. Machindra Kashinath Rithe, R/o-Shendra (Ban), Tq. & Dist-Aurangabad. ...PETITIONER. VERSUS 1) Apparao s/o Rawan Bhavale, R/o-Gangapur (Jahagir), Tq. & Dist-Aurangabad. 2) Bhausaheb s/o Saluba Bhavale, R/o-Gangapur (Jahagir), Tq. & Dist-Aurangabad. ...RESPONDENTS. ... Mr. S.D. Hiwrekar Advocate for Petitioner. Mr. Milind Joshi Advocate for Respondent Nos.1 & 2. ... CORAM: K.K. TATED, J. DATE : 14TH SEPTEMBER, 2009. PER COURT : 1. Rule. Rule made returnable forthwith. With the 2 consent of the learned counsel for the parties, matter is taken up for final hearing at the stage of admission. 2. Present Petition preferred by the original plaintiff under Articles 226 and 227 of the Constitution of India challenging the order dated 28th April, 2009 passed by the District Judge-2, Aurangabad in Misc. Civil Appeal No.29 of 2009 arising out of the order passed by the learned Joint Civil Judge, Junior Division, Aurangabad in Regular Civil Suit No.1138 of 2008 below Exhibit 5. A few facts of the present case are as under: . The Petitioner - original plaintiff filed Regular Civil Suit No.1138 of 2008 in the Court of Civil Judge, Junior Division , Aurangabad for perpetual injunction restraining Respondents from interfering and obstructing into peaceful possession of the Petitioner over the suit land i.e. Gut No.101 admeasuring 1 Hector 20 R's situated at Gangapur (Jahangir), Taluka and District - Aurangabad. It is the case of the Petitioner that her name is Kacharabai and her real sister's name is also Kacharabai. It is the case of the Petitioner that taking the advantage of similarity in names, her real sister 3 sold the suit property to the Respondents. On the basis of these facts, the Petitioner preferred application for injunction restraining the Respondents - original defendants i.e. purchaser of the suit property, from creating any third party right, title and interest under Order 39 Rule 1 and 2 of the Code of Civil Procedure. The said application came to be dismissed on 23rd January, 2009 by the Joint Civil Judge, Junior Division, Aurangabad. Against that, the Petitioner preferred Misc. Civil Appeal No.29 of 2009. The same also dismissed by the District Judge-2, Aurangabad on the ground that the Petitioner failed to prove her possession in respect of the suit property. 3. On the other hand, learned counsel for Respondent No.1 filed affidavit in reply dated 17th August, 2009 and pointed out that the Petitioner's own son gave evidence in Regular Civil Suit No.118 of 2005 stating that her mother's name is Padmabai Kashinath Rithe. Appellate Court relied on these facts in Para 14 of the Judgment. This itself shows that whether the Petitioner's name is Kacharabai or Padmabai is in dispute. At one hand the Petitioner is claiming her name 4 to be as Kacharabai, whereas her own son has given evidence in Regular Civil Suit No.118 of 2005 stating that her mother's name is Padmabai. Not only that, the Petitioner failed to produce any documentary evidence to show that she is in possession of the suit property. The 7/12 extracts produced on record, shows the possession of the suit lands in favour of the Respondents. Considering these facts, I do not find any substance in the present Writ Petition. In the above mentioned facts and circumstances, it is not necessary to interfere with the concurrent findings of both the Courts below. Therefore, Writ Petition is dismissed. Rule stands discharged. [K.K. TATED, J.] asb/SEPT09/wp4843.09