IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.486 OF 2003. APPEAL NO.486 OF 2003. APPEAL NO.486 OF 2003. Smt Kantabai Umedmal Oswal & Ors. ...Appellants Versus. Panachand Mangalal Oswal & Ors. ...Respondents. Shri N.V.Bandiwadekar for the Appellants. Shri M.V.Limaye for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 05th February, 2008. : 05th February, 2008. : 05th February, 2008. P.C.: P.C.: P.C.: 1. Heard the advocate appearing for the appellants. The appellants are the original defendants. The first and second respondents are the original plaintiffs. In earlier suit filed by the respondents-plaintiffs a decree for possession was passed against the appellants and others. The said decree has admittedly attained finality. The case of the respondents is that in execution of the said earlier decree one of the defendants (Judgment Debtor No.2) in the said earlier suit handed over possession of the suit property to the respondents and therefore, the execution proceeding was not prosecuted further. The present suit is filed for injunction restraining the appellants from interfering with the possession of the respondents. The trial Court passed a decree which has been confirmed in appeal. 2. The contention of the appellants was that the decree passed in the earlier suit filed by the : 2 : 2 : 2 : respondents was not executed and possession was not taken over in execution of the decree. Their contention is that though the second defendant in the earlier suit purported to place the respondents in possession, the said second defendant was not empowered to act on behalf of other defendants and his signature was obtained on a pursis filed in the execution proceeding by using force and by giving threats. 3. The submission of the advocate for the appellants is that the appellants were also the defendants who suffered a decree for possession in the said earlier suit filed by the respondents. He submitted that though a Darkhast was filed for executing the decree passed in earlier suit, only on the basis of pursis filed by the respondents, the Darkhast was withdrawn which itself shows that the possession was never taken over from the appellants. He submitted that an objection was raised to the report of the Court Commissioner which has not been considered by the courts below. 4. I have carefully considered the submissions. It is not in dispute that the decree for possession in respect of the suit property passed against the appellants in the suit filed by the respondents has attained the finality. The execution application filed : 3 : 3 : 3 : for recovery of possession was disposed of after a pursis was filed by the second defendant in the earlier suit recording the delivery of possession. The courts below have considered the evidence on record including the report of the Court Commissioner and have recorded a concurrent finding that the respondents are in possession of the suit property. Therefore, a decree for perpetual injunction has been passed against the appellants for protecting the possession of the respondents. 5. Admittedly, the decree for possession passed against the appellants has attained finality. The Courts below have not relied upon only the report of the Commissioner. The Courts have considered the other documents such as a license of business, assessment extract etc which establish the possession of the respondents. Considering the oral and documentary evidence on record, the trial Court granted discretionary and equitable relief of perpetual injunction in favour of the respondents. The said decree has been confirmed by the District Court. No substantial question of law arises. Second Appeal is dismissed. There will be no orders as to costs. 6. In view of dismissal of the appeal, Civil Application No.756 of 2003 does not survive and the same : 4 : 4 : 4 : is rejected. Judge. Judge. Judge.