1 65 sa 729.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 729 OF 2010 Smt.Kamabai Balu Banne deceased, L.Rs. Sidram Balu Banne, deceased, L.Rs. Shantabai & Ors. ..Appellants. Vs. Mahadev Balu Kudache ..Respondent. Mr.P.M.Arjunwadkar for appellants. CORAM : K.K.TATED, J. DATED : 10/01/2011. PC: 1 Heard learned counsel for appellant. 2 This appeal is directed against the concurrent judgments of the courts below by which appellants/original defendants were restrained from interfering with respondents/original plaintiffs possession in respect of 13 gunthas of land from revision survey no.550 situated at Shahapur, taluka Hatkanangale, District Kolhapur. 3 The respondent/original plaintiff filed Regular Civil Suit No.380 of 2003 against appellants/original defendants for perpetual injunction. The trial court by its judgment and decree dated 29th February, 2008 restrained appellants from interfering with respondent’s peaceful possession of the suit property. 2 65 sa 729.10.doc 4 Being aggrieved by the judgment and decree dated 29th February, 2008 passed by the III Joint Civil Judge Junior Division, Ichalkaranji. Appellants/original defendants preferred Regular Civil Appeal No.25 of 2008 on 9th April, 2008 in the court of District Judge-1, Ichalkaranji being Regular Civil Appeal No.25 of 2008. The said appeal was dismissed by the appellate court on 17th August, 2010. 5 The appellants/original defendants preferred second appeal against concurrent judgments of both the courts below. The few facts of the matter are as under: 6 Before the trial court, the respondent submitted that Ramchandran Satyappa Dhanagar and his brothers and sisters were having 1/6th share in revision survey no.550 ad-measuring 3 H 12 Rs. On 20th April, 2006 Ramchandran Satyappa Dhanagar and others entered into agreement to sell 13 gunthas of land out of survey no.550 to Bharat Kallappa Aarage and delivered him possession of the suit property. The respondent submitted before trial court that Ramchandra Satyappa Dhanager and others agreed to execute the sale deed in favour of Bharat Kallappa Aarage after the finality of litigation which was pending in court. During that period Bharat Kalappa before executing the sale deed in favour of Bharat Kallappa Aarage was in financial crises and therefore, he contacted respondent/original plaintiff and 3 65 sa 729.10.doc agreed to transfer his right to claim specific performance from Ramchandra Satyappa Dhanagar and others. Bharat Kallappa before executing the sale deed in favour of Bharat Kallappa Aarage handed over the possession of the suit property to the respondent and executed the agreement dated 31st October, 1992. On the basis of possession receipt at Exhibit-82, both the courts below held that the respondent/original plaintiff is in exclusive possession of the suit property i.e. 13 gunthas of land from survey no.550 and restrained the appellants from interfering with his peaceful possession. 7 The learned counsel appearing on behalf of appellants/original defendants submits that both the courts below erred in coming to the conclusion that the respondent/original plaintiff was in exclusive possession of 13 gunthas of land from survey no.550 on the basis of possession receipt Exhibit-82. He submits that the courts below ought to have seen that the respondent did not prove an agreement dated 20th April, 1986 nor he had established with cogent evidence that Ramchandra Satyappa Dhanagar and eight others had handed over the possession of the suit land to Bharat Kallappa Aarage who in turn allegedly handed over possession of the suit property to the respondent. He further submits that the courts below ought to have seen that the predecessors of the 4 65 sa 729.10.doc respondent had no title to the suit property since the said predecessor was claiming his right merely on the basis of an agreement for sale dated 20th May, 1986, that the predecessors of the respondent had no lawful right to transfer the title of the property in favour of respondent or put him in the possession of the suit property as there was no sale deed in respect of the suit property in his favour. He further submits that on perusal of Exhibit-108, it is clear that the story of the respondent in para 2 of the plaint that when the agreement was executed on 20th April, 1986 Ramchandra Satyappa Dhanagar and others delivered possession to Bharat Kalappa Aarage appears to be false because as per the contents of the agreement Exhibit-108 admittedly Ramchandra Satyappa Dhanagar and others were not in possession of the suit property. On the basis of these submissions, the learned counsel appearing on behalf of appellants/defendants submits that both the courts below erred in coming to the conclusion that the respondent/original plaintiff is in possession of the suit property. He further submits that both the courts below erred in issuing perpetual injunction restraining the appellant from disturbing the respondent’s possession of the suit property. 8 The learned counsel appearing on behalf of appellant tendered paper book of Regular Civil Appeal No.25 of 2008, 5 65 sa 729.10.doc I have gone through the copy of plaint in Regular Civil Suit No.380 of 2003 filed by respondent and written statement filed by appellants. I have also gone through the deposition of witnesses examined by original plaintiff and defendants. It is to be noted that the respondent/original plaintiff is not claiming ownership on the basis of any document. His specific case is that he agreed to purchase the suit property from Bharat Kallappa Aarage. Pursuent to the said agreement the respondent specifically stated in his deposition that after getting peaceful possession of the suit property he constructed house which is in his possession. These facts are also admitted by appellant no.2 Mangu in his evidence. The appellate court in para 17 held that on the date of filing of the suit, the suit property was in possession of the respondent, his house was standing in the suit property. It is to be noted that no one can be dispossessed without following due process of law. In the present case, the respondent proved that he was in exclusive possession of the suit property and he constructed house in the suit property and started residing there. He placed on record, documentary evidence to show that he paid municipal taxes, water taxes, electricity charges etc. These facts are concurrently held by both the courts below to have been proved in favour of respondent. The Apex Court in the matter of Narayan 6 65 sa 729.10.doc Rajendran and Another vs. Leksmy Sarojini and Others, reported in JT 2009 (4) SC 62 held that second appeal is permissible only on a substantial question of law. Considering the facts of the matter, I do not find any substantial question of law involved in the present second appeal. 9 Considering that there are concurrent findings of fact recorded by the courts below and as I find sufficient material on record to sustain those findings and considering extremely limited jurisdiction of this court under section 100 of the Code of Civil Procedure, 1908 to distract the findings of fact, this appeal stands dismissed. 10 No order as to costs. (K.K.Tated, J.)