1 sa 171.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 171 OF 2010 Gopinath S/o Marotrao Jadhav .. Appellant Versus 1. Ramling S/o Vishwanath Modiwale and others .. Respondents Shri S. G. Chapalgaonkar, Advocate for the Appellant. Shri N. P. Patil (Jamalpurkar), Advocate for Respondents. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH APRIL, 2011. PER COURT : . This is an appeal by original defendant. The plaintiffs had filed suit for simplicitor injunction. The Trial Court decreed the suit. The defendant preferred an appeal. The appellate Court also dismissed the appeal confirming the judgment and decree passed by the Trial Court. Aggrieved thereby the defendant has filed the present second appeal. Shri Chapalgaonkar, the learned counsel for the appellant contends that though it is a case of concurrent finding, still said findings are perverse in as 2 sa 171.10 much as the possession was never handed over to the plaintiff in proceedings U/Sec. 145. The possession and panchanama dated 04.04.1995 are only paper receipts and panchanama and no actual physical possession was delivered. This fact can be substantiated by the affidavit in reply filed by the Tahsildar before the High Court in Criminal proceedings, wherein it is stated that in the year 1999 the possession of the suit land was with the Government. According to the learned counsel, there is no iota of evidence to show that the plaintiff is in possession of the property. Even the revenue record does not depict his possession. All these aspects have not been considered by the Courts below and have merely relied on the panchanama and possession receipt which cannot bestow any right on the present appellant. Merely on the basis of proceedings U/Sec. 145, the possession having determined. 2. Shri N. P. Patil (Jamalpurkar), the learned counsel for respondents submits that, even this Court had recorded the finding that the possession has been delivered to the plaintiff. The criminal proceeding are culminated and same are confirmed by this Court in writ petition thereby confirming the fact that the possession was delivered to the plaintiff. Even this Court in 3 sa 171.10 Criminal Application No. 2424/1998 concluded that the Taluka Executive Magistrate has delivered possession to the plaintiff. 3. With the assistance of the learned counsel I have gone through the judgments. Both the Courts have given a categorical finding that none of the parties has any title over the suit property, but as the suit was simplicitor for injunction, the factum of possession only was considered. The order of Executive Magistrate delivering the possession to the plaintiff has been upheld up to this Court. The possession receipt and the taba- pawati shows that the possession was delivered to the plaintiff on 04.04.1995, though there affidavits filed by the different Executive Magistrates contending either way. The same will have to be considered along with other attending circumstances and evidence on record. The defendant does not claim that the possession was delivered to him, but he claims that the possession is of the Government. On the other hand, the plaintiff is contending that the possession has been delivered to him by order of the Taluka Executive Magistrate and he was put in physical possession on 04.04.1995. The said order has been confirmed by the Sessions Court and the High Court after considering all the affidavits filed on record. In the light of that, 4 sa 171.10 once it is concluded by this Court though in proceeding U/Sec. 145 of the Cr. P. C. that the possession is delivered by the plaintiff, then in such circumstances the view taken to the Courts below cannot be said to be perverse or based on no evidence. 4. The view taken by the Courts below is possible and plausible view. The second appeal cannot be entertained only on the ground that some other view is possible. In the light of above, the second appeal being sans substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/April 11