242sa495.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No.495 of 2009 (Manish Ashok Pimple .vs. Ajit s/o. Vasant Sardesai) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: R. K. Deshpande, J. Date : February 24, 2010. Heard Mr. N. A Vyawahare, Adv. for the appellant and Mr.A.T.Purohit, Adv. for respondent. This appeal is preferred by the Original Plaintiff who had filed Regular Civil Suit No. 1385 of 1998, u/s. 6 of the Specific Relief Act for restoration of Possession and Mandatory and Perpetual Injunction. The learned Joint Civil Judge (Jr.Dn.), Nagpur by his judgment and order dt. 29.6.2002 dismissed the said suit. Being aggrieved by decision of the trial Court, the Original Plaintiff preferred Regular Civil Appeal No.493 of 2004. Same was decided by the learned Ad-hoc District Judge-10 and A.S.J. at Nagpur by his judgment and order dt. 31.8.2007. The appeal was dismissed. The Appellate Court framed the following points for determination : 242sa495.09.odt 2 . POINTS FINDINGS 1. Is it proved by the plaintiff Manish Pimple that he was dispossessed by the defendant without his consent or otherwise than in due course of law from the suit room as shown in the alphabets as DEFG in the plaint map ? …. No. 2. Whether the appeal against the impugned Judgment and Decree is maintainable ? .... No. 3. Is it proved by the defendant Ajit Vasant Sardesai that the plaintiff illegally entered in one room of the suit premises in the month of September, 1998 ? …. Yes. 4. Whether the counter claim of the defendant deserves to be allowed ? ,..... Yes. 5. Whether the impugned Judgment and Decree deserves interference ? …... Yes. 6. What order ? …... As per final order. The Appellate Court recorded a specific finding that the appeal was not maintainable u/s. 6 (3) of the Specific Relief Act, 1963. However, it further recorded a finding on merits in respect of point no.1 against the plaintiff. Being aggrieved by dismissal of Regular Civil Appeal No. 493 of 2004 containing the findings recorded on point no.1 against 242sa495.09.odt 3 . the plaintiff, this Second Appeal has been preferred. Mr.N. A. Vyawahare, Adv. for the appellant has conceded to the position that the appeal filed by the appellant/plaintiff bearing No.493 of 2004 was not maintainable in view of specific provision u/s. 6 (3) of the said Act. He has urged that the Appellate Court having once found that the appeal is not maintainable has committed jurisdictional error in recording the finding against the appellant/plaintiff on merits of the matters in respect of point no.1. Hence, the present Second Appeal has been preferred for limited extent of challenging finding recorded on merits. According to him, this amounts to granting decree against the appellant. After going through the judgment of the Appellate Court, it is apparent that the finding recorded that the appeal is not maintainable cannot be faulted with. The question whether the finding recorded by the Appellate Court on merits of the matter after dismissal of the appeal as 'not maintainable' shall come in the way of appellant or not, can be gone into in revision which is available to the appellant/plaintiff against the judgment and order dt. 29.6.2002 passed by the learned Joint Civil Judge (Jr.Dn.), Nagpur. Hence, there is no substantial question of law which arises out of the judgment delivered by the Appellate Court impugned in this appeal. In the result, there is no substance in the appeal. Hence, the same is disposed of. JUDGE jais 242sa495.09.odt 4 .