( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 447 OF 2009 Radhakishan s/o Gangaram Raut and another. APPELLANTS VERSUS Rukhmanbai w/o Baburao Kshirsagar and others. RESPONDENTS ..... Mr. R.R. Imale, advocate for the appellants. Mr. S.D. Hiwrekar, advocate for the respondent No. 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 24th November, 2009] PER COURT : 1. Heard counsel for the parties. 2. The appellants are the original plaintiffs. Their suit (R.C.S. No. 61/2003) for injunction simplicitor came to be dismissed. The First Appellate Court confirmed the decree while dismissing the appeal (R.C.A. No. 203/2005). There are concurrent findings of facts. ( 2 ) 3. It is contended by learned counsel for the appellants that in the suit for injunction, the issue pertaining to adverse possession of the plaintiffs in respect of the eastern portion was framed which was not necessary. He would submit that only eastern portion of the house property was subject matter of dispute and yet, the trial Court and the first Appellate Court considered the entire house property as the subject matter of the dispute and wrongly appreciated the evidence of the parties. 4. In suit for injunction simplicitor, the only material issue involved is regarding lawful possession of the plaintiffs. Though the issue regarding prescriptive title is framed, yet, the trial Court held that the prescriptive title and possession of the plaintiff to the extent of the suit property excluding the eastern disputed portion has been proved. What appears from the tenor of the claim put forth through the pleadings and the plaint is that under garb of injunction, the appellants (plaintiffs) claimed the ( 3 ) entire property including the disputed eastern portion and, therefore, the suit came to be dismissed. 5. Considering the settled legal position, as held in “Gurdev Kaur & others v. Kaki & others” (AIR 2006 S.C. 1975), this second appeal against findings of facts is unsustainable. It is, however, clarified that the issue regarding ownership of the house property and the eastern portion thereof is not to be treated as finally decided in as much as such finding rendered in the suit and appeal is incidental to the issue regarding lawful possession. The appeal is accordingly dismissed. No costs. 6. In view of dismissal of the second appeal, civil application No. 1222/2009 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa447-09 ( 4 )