1 S.A. No.509.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.509 OF 2010 Kailasappa Asaramappa Phutankar & another .. APPELLANTS VERSUS Kamalabai W/o Dwarkadas Shinde & another ...RESPONDENTS ... Shri. M.P. Harjule, Advocate for the appellants ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is plaintiffs Second Appeal. The Plaintiff had filed a suit for simplictor injunction claiming that he is owner and possessor of 4 Hector land out of Gut No. 265, and the defendants have no concern with the suit property. The trial Court partly decreed the suit granting injunction to the extent of 5 Acres 3 Guntha. The plaintiffs preferred an appeal. The 2 S.A. No.509.2010 appellate Court also dismissed the appeal confirming the Judgment and Decree passed by the trial Court. The plaintiff has assailed the said Judgment and Decree in the present Second Appeal. 2. The learned Counsel for the appellant submitted that as against overwhelming evidence in the shape of revenue record, the Courts could not have negatived the claim of the plaintiff. The 7/12 extracts have got evidential value as per Section 35 of the Indian Evidence Act. The Courts below have committed an error in not relying upon the same. The plaintiff is in longstanding possession which is substantiated from the revenue record and the person in settled possession is entitled for injunction. For the said purpose the learned Counsel relied on the Judgment of the Apex Court in a case of “Rame Gowda (Dead) by LRS. V/s. M. varadappa Naidu (Dead)By LRS. & another, reported in (2004) 1 SCC 769” 3. With the assistance of learned Counsel for the respective parties I have gone through 3 S.A. No.509.2010 the judgments delivered by both the Courts below. It is a fact that the father of the plaintiff had purchased the suit property from the mother of the defendant. The subject matter of the said transaction of sale was only 6 Acre 10 Guntha of the land. As such, pursuant to the said sale transaction the plaintiff’s father became the owner of 6 Acre and 10 Gutha. It is also not disputed that out of 6 Acres 10 Guntha land, the plaintiff has sold 47 R land to various persons. As such only 5 Acres and 3 Guntha land would remain with the plaintiff. The sale-deed or the source of ownership of the plaintiff is not disputed fact. In the light of the fact that the plaintiff became owner by virtue of registered instrument of sale of only 6 Acres and 10 Guntha of land, and out of 6 Acres and 10 Guntha, he had already sold 47 R land. It cannot be said that the plaintiff would be in possession of 3 Hector 53 R land. Moreover, the suit was filed for simplictor injunction. Both the Courts below have exercised their discretion against the plaintiff, on the count of equity also the plaintiff would not be entitled for the said relief, taking into 4 S.A. No.509.2010 account the fact that plaintiff does not have the title of the area as claimed by the plaintiff. In such, circumstances, the conclusion drawn by the Courts below was a possible conclusion. The Second Appeal cannot be entertained only on the ground that some other conclusion could have been possible. 4. 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*