1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.408 OF 2009. with CIVIL APPLICATION NO.5850 OF 2009. Shaikh Rashid S/o Sk.Hyder and others ... Appellants. Versus The State of Maharashtra and others ... Respondents. ... Mr.S.V.Gangapurwala, advocate for the appellants. ... CORAM : V.R.KINGAONKAR,J. Date : 19.11.2009. PER COURT 1. Heard learned counsel. 2. This Second appeal is preferred by original plaintiffs. They had filed suit (RCS No.137/2004) for declaration of ownership and 2 recovery of possession. According to them, their grand father by name Noor Shaha was the owner and possessor of the suit land. He had three (3) sons by name Sk.Hyder, Sk.Mohd.Saheb and Sk.Rahim. They are the sons of Hydershah. They further alleged that in his life time Sk.Hyder was allotted the suit land. The suit land was leased out by Sk.Hyder to father of original defendant Nos.2 and 3 i.e. Maroti. Said Maroti had filed a suit (RCS No.256/1959 against their father for specific performance of the agreement of sale. The suit was decreed. They contended that their ownership to the extent of 1 Aana 4 Pai share remained intact notwithstanding such a decree and, therefore, they were entitled to seek reliefs in the suit. The trial Court as well as the first appellate Court held that the plaintiffs failed to prove their ownership and that possession of the defendants could not be regarded as illegal, the suit was dismissed. 3. The concurrent findings of facts are rendered by the trial Court and the first appellate Court on the basis of the material 3 which was placed on record including the earlier decree in RCS No.256/1959 and RCS No.322/1959. It is pertinent to notice that the plaintiffs had also filed yet another suit (RCS No.188/2001) for declaration and injunction. That suit was withdrawn with leave to file afresh suit. It appears that deceased Maroti was tenant of the suit land since 1348 Fasli (1939 A.D.). The status of said Maroti as a tenant of Sk.Hyder is stated by the appellants themselves. Unless the tenancy rights are lawfully terminated, they were not entitled to seek possession. The findings of the facts by the two Courts are not perverse and, therefore, this Second Appeal is outside the scope of Section 100 of the C.P.C. In view of "Gurdev Kaur and others Vs. Kaki and others" AIR 2006 Supreme Court 1975, the appeal is not maintainable and as such is dismissed. C.A. disposed of. (V.R.KINGAONKAR,J.) asp/office/sa40809