1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 693/2007 ________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | __________________|______________________________ Mr. Prashant Deshmukh, Advocate for appellant. Mr. P.N. Kalani, Advocate for respondent No.1. CORAM: S.V. GANGAPURWALA, J. Date : 28th October, 2010 1 Heard. 2 This is defendant’s second appeal. The present respondent / original plaintiff had instituted suit for injunction restraining the defendant No.1 from interfering or obstructing into the peaceful possession and enjoyment in respect of the plot No. 40 admeasuring 15’x60’. The trial Court decreed the suit. The defendant No.1 preferred an appeal. The appellate Court dismissed the appeal and confirmed judgment and decree passed by the trial Court. Defendant No.1 assailed said judgment in the present second 2 appeal. 3 Shri S.K. Kulkarni the learned counsel for the appellant contended that there is no proof that the plaintiff is in exclusive possession of the suit property. The present appellant being the owner has every right to enjoy the suit property. His rights can not be impeached by writ of injunction restraining the present appellant to enter his own house. 4 Shri Kulkarni further submitted that assuming that the plaintiff is in possession of the said house property still her possession is gratuitous and that does not entitle the plaintiff to claim injunction. The Courts below on appreciation of evidence, have categorically come to conclusion that the plaintiff is in possession of the said house property, as detailed in the plaint. The said plot No.40 is a big plot and from that plot, an area of 15’x60’ is given in possession of the plaintiff. The finding arrived at by the Court is a plausible finding. 5 At the same time, it is undisputed that the original owner is present appellant. It is discussed by 3 the Court that the application was given by present appellant to record the suit property in the name of the present respondent No.1 / original plaintiff. But on the very next day, he has withdrawn said application. As the plaintiff is in actual physical possession of the suit property, the appellant can not be allowed to take law in his own hands to dispossess the plaintiff. As is held by the Apex Court in a case of Rame Gawda versus M. Varadappa Naidu reported in 2004(1) S.C.C. 769. At the same time, rightful owner has every right to take the possession of the property by adopting due process of law. The present matter being simplicitor for injunction, the enquiry into the relationship of the appellant and the respondent No.1 so also regarding the title of the house property has not been made. The injunction granted by the Courts should be read as the defendant No.1 should not interfere or obstruct the possession and enjoyment of the plaintiff in respect of the suit property except according to due process of 4 law. The appellant by adopting due process of law can seek appropriate remedy and relief and the present injunction in that case would not come in the way of the appellant. 6 Nothing is dilated on the merits of the matter and the individual rights of the parties. Second appeal accordingly disposed of with above observations. However, there shall be no order as to costs. 7 In view of the disposal of second appeal, civil application also stands dismissed. [S.V.GANGAPURWALA, J.] ts k/