1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.316 OF 2002 Shri.Ramchandra Vishnu Joshi & Anr. .. Appellants V/s Shri.Eknath Narhari Joshi & Others .. Respondents Mr.R.M.Hardas h/f Mr.P.N.Joshi for the Appellants. Ms.P.N.Dabholkar h/f.Mr.G.S.Godbole for Respondents. . CORAM : R.G.KETKAR, J. DATE : 23RD JULY, 2009. P.C.: . The appellants herein being original plaintiff & Defendant No.6 have preferred this appeal against the judgment and order dated January 24, 2000 passed by the learned III Additional District Judge, Nashik in Civil Appeal No.142 of 1995. The Civil Appeal No.142 of 1995 was preferred by the original Defendant Nos.1 to 3 challenging the judgment and decree dated April 19, 1995 passed by the learned Civil Judge, Junior Division, Pimpalgaon (B). The plaintiff had filed suit for injunction simplicitor interalia on the grounds that the plaintiff was in possession of the agricultural lands and the Defendant Nos.1 to 3 were trying to obstruct his peaceful possession. As against this, it is the case of Defendant Nos.1 to 3 that one Vishnu Joshi, father of the plaintiff and Defendant Nos.4 to 6 had permitted them to cultivate the said lands and after his death they were permitted to 2 cultivate the lands on a Makta basis on payment of Rs.800/- per annum. In support of rival contentions, parties led oral as well as documentary evidence. Plaintiff relied upon 7/12 extracts at Exhibits 27 to 29 and Khata Extract at Exhibit 30 which show that the plaintiff and defendants 4 to 6 were in possession of the suit land. Plaintiff and defendants 4 to 6 relied upon the evidence of Talathi Shri.Jadhav and one Gangadhar Dhomse. On the other hand defendants 1 to 3 relied upon the letters at Exhibits 43 to 47 and the receipts showing payment of assessment at Exhibits 48 to 55. 2. The trial court decreed the suit and issued injunction. Being aggrieved by this order, defendants 1 to 3 preferred appeal, which is allowed. Mr.Hardas, learned counsel for the appellant contended that the Appellate Court committed grave error in giving undue importance to the correspondence at Exhibits 43 to 47 and ought to have given importance to the public documents being 7/12 extracts at Exhibits 27 to 29 and Khata extract at Exhibit 30. He submitted that the substantial question of law as regards the authenticity of the public documents vis a vis private correspondence arises in this second appeal. He further submitted that assuming that the letters are exhibited, whether the defendants 1 to 3 can be said to have proved the contents of these letters is also to be gone into. According to him the contents of these letters have not been proved and despite this position, the Appellate Court has reversed the finding and this is also the substantial question of law 3 involved in the second appeal. 3. On the otherhand, Ms.Pallavi Dabholkar, learned counsel for the respondents submitted that the trial court had recorded a finding that the original defendants 1 to 3 were in possession of the lands and having regard to the fact that the suit filed by the plaintiff is for injunction simplicitor, the trial court ought to have dismissed the suit. The plaintiff did not file suit for recovery of possession and the trial court having recorded the finding that defendants 1 to 3 were in possession, ought to have dismissed the suit. She heavily relied upon the receipts showing assessment paid by defendants 1 to 3 in respect of the said lands. 4. Having considered the rival contentions raised by the parties, I am of the view that once the trial court recorded the finding that defendants 1 to 3 were in possession, it ought to have dismissed the suit for injunction simplicitor. The remedy, if any, was to file the suit for recovery of possession. The trial court in paragraph 12 addressed on this aspect and held that defendants 1 to 3 were in possession of the suit lands, but then misdirected itself in posing a question as to whether defendants 1 to 3 can be said to be in possession of the suit lands in the absence of any sort of transfer. That enquiry could have been made provided the suit was for possession. That question did not arise in the suit for injunction simplicitor. The court has to find out who is in possession of the property. The Appellate court in my view appreciated the evidence 4 on record and also considered the finding of the trial court as regards the possession and came to the conclusion that defendants 1 to 3 were in possession of the suit lands. The letters at exhibits 43 to 47 clearly admit possession of defendants 1 to 3. In view of this position, the Appellate Court rightly did not give importance to 7/12 extracts at exhibits 27 to 29. In so far as Khata extract at exhibit 30 is concerned, the defendants 1 to 3 did not challenge the ownership of the plaintiff and defendants 4 to 6. In this state of affairs, the appellate court rightly came to the conclusion that defendants 1 to 3 were in possession. While allowing the appeal, the appellate court also relied upon the judgment of the Apex Court in the case of Krishna Ram Malahe V/s.Mrs.Shobha Vyankatrao, AIR 1989 SC 2097. Mr.Hardas, learned counsel for the appellant invited my attention to the judgment of the Apex Court in the case of Narbada Devi Gupta V/s.Birendra Kumar jaiswal and Another, (2003), 8 SCC 745 to contend that mere exhibiting the document is not sufficient. The party relying upon the document has to establish the contents thereof. In this behalf, it is relevant to note that defendants 1 and 2 are uncles of the plaintiff and defendants 4 to 6. The letters are addressed by defendants 4 to 6, and defendant No.2 in his evidence has identified the signatures of defendants 4 to 6. It therefore cannot be said that the letters are not proved by defendants 1 to 3. The appellate court has appreciated the evidence on record. No substantial question of law arises in this second appeal. Hence, second appeal is dismissed. 5 5. In view of dismissal of second appeal itself, nothing further survives in the Civil Application No.425 of 2002 and hence the Civil Application No.425 of 2002 also stands dismissed. (R.G.KETKAR, J.)