1 SA 221.2010 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 221 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's Orders Mr. P.R.Katneshwarkar, Advocate for the appellant. Mrs. Geeta Deshpande, Advocate for resp.nos. 1 & 2 .................... CORAM : S.V. GANGAPURWALA, J. DATE : 01/12/2010 PER COURT : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for injunction restraining the defendant from interfering in his possession on the basis of title. The Trial Court dismissed the Suit holding that the plaintiff could not prove his exclusive possession. The plaintiff preferred Appeal. The appellate Court also dismissed the Suit on the count that the plaintiff could not prove his exclusive possession. The plaintiff has assailed the said Judgment in the present Appeal. 3. Mr. Katneshwarkar, the learned counsel for the appellant states that it is undisputed that the property is purchased exclusively in the name of 2 SA 221.2010 the plaintiff and the registered instrument of conveyance, shows that the plaintiff is the owner and possessor of the property. The oral evidence led by the defendant would not prevail over the said documentary evidence. According to the learned counsel, even the said sale deed was acted upon. Mr. Katneshwarkar, the learned counsel further submitted that though no issue of ownership was framed, the Courts below have given finding on the same, which is prejudicial to the plaintiff and the same could not have been done. 4. Per contra, Mrs. Geeta Deshpande, the learned counsel for the respondent submitted that both the Courts have concurrently come to the conclusion that the plaintiff is not in exclusive possession of the suit property and the present respondent is in possession of 1 Acre of the land. After the property was purchased in the name of plaintiff as a ‘ karta ’ of the family, there was partition and the shares were allotted to all the 3 brothers. 5. With the assistance of the learned counsel for the respective parties, I have gone through the Judgments delivered by both the Courts. 6. The Suit was for simplicitor injunction, where the issue directly and substantially in issue is regarding the factum of possession. The issue 3 SA 221.2010 about ownership would only be collateral to the same. Both the Courts on appreciation of evidence, oral as well as documentary, more particularly the evidence of P.W. 2, the inspection reports of the revenue authorities, the report of the Court Commissioner and the mutation entry, have come to the conclusion that the plaintiff has failed to prove his exclusive possession. 7. There was neither issue about ownership framed by the Trial Court nor any point for determination framed by the appellate Court in respect of ownership. It appears from the record that the plaintiff has not filed the sale deed i.e. document of his title. Practically, no issue was framed to that effect. When the issue of possession is being decided, the finding of ownership would be collateral to the same. In the present matter, we are not concerned with the dispute about the ownership but only with regard to the factum of possession. As both the Courts have concurrently come to the conclusion that the plaintiff is not in exclusive possession and the defendant is also proved to be in possession, have refused the relief of injunction. No error can be found to have been committed by the Courts below in that regard. 8. The discussion about ownership would only be for collateral purpose and the issue which was substantially in issue was regarding the factum of possession. 4 SA 221.2010 9. In light of the above, Second Appeal is dismissed, however with no order as to costs. 10. In view of dismissal of Second Appeal, the Civil Application does not survive and is disposed of. [ S.V. GANGAPURWALA ] JUDGE knp/SA 221.2010