1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. SECOND APPEAL NO.663/2008 WITH CIVIL APPLICATION NO.1745/2008 Mahadeo Shankar Donage and others. ..Appellants -VERSUS- Ratikant Shankarappa Patil and another. ..Respondents ......... Mr.R.S.Apte, Senior Advocate i/b Mr.A.A.Garge, Advocate for the appellants. Mr.S.M.Sabrad i/b Mr.R.S.Alange, Advocate for the respondents. .......... WITH SECOND APPEAL St. NO.25613/2008 WITH CIVIL APPLICATION NO.1746/2008 Vivek Mahadeo Donage. ..Appellant -VERSUS- Ratikant Shankarappa Patil and another. ..Respondents ......... Mr.R.S.Apte, Senior Advocate i/b Mr.A.A.Garge, Advocate for the appellants. Mr.S.M.Sabrad i/b Mr.R.S.Alange, Advocate for the respondents. .......... 2 CORAM : A.P.DESHPANDE, J. DATED : 19th MARCH, 2009. P.C. : 1. These appeals are taken up for final disposal by consent of the parties. 2. These two appeals i.e. Second Appeal No.663/2008 and Second Appeal St. No.25613/2008 arise out of the common judgment and decree passed by the first Appellate Court reversing the common judgment and decree delivered by the Trial Court in the cross-suits filed by the present appellant and the respondent. In both the suits, the relief of injunction simplicitor is claimed. In the suit filed by the appellant in Second Appeal No.663/2008, the Trial Court passed the decree of injunction restraining the respondent herein from interfering with the suit plots. However, the suit filed by the present respondent yet again seeking relief of injunction came to be dismissed. Aggrieved by the judgment and decree passed by the Trial Court, the respondent herein preferred the appeals before the first Appellate Court. The first Appellate Court reversing the judgment and decree passed by the Trial Court allowed the appeals by decreeing the suit filed by the present respondent and dismissing the suit filed by the present appellant. Aggrieved thereby, these Second Appeals are filed by the present appellant. 3. The few facts, that are necessary to understand the controversy, are in brief narrated herein below :- 3 (a) The suit property was originally owned by Mahadeo Donage and the same came to be transferred by way of sale in favour of Sangappa Jangam Shetty by a registered sale deed. Mahadeo and Sangappa are the brothers-in-law. At later point of time, Sangappa executed the power of attorney in favour of Mahadeo and acting under the said power of attorney, Mahadeo executed the sale deed in favour of his son Vivek on 26.05.1994. The suit property, thus, came to be transferred in favour of Vivek under the said registered sale deed. (b) Under the two different sale deeds dated 04.06.1994 and 06.06.1994, the suit plots came to be sold by Sangappa to the present respondent. Though various contentions were raised by the parties before the Trial Court having regard to the fact that the cross-suits filed by both the parties pertain only to injunction simplicitor, the main question was in regard to possession of the suit property. The Trial Court after considering the evidence on record, recorded a categorical finding in favour of the present appellant and his son Vivek about he being in possession of the suit property and thus, the suit filed by appellant was decreed and the cross-suit filed by the respondent was dismissed. In the appeals carried to the District Judge by the present respondent, though the judgment and decree passed by the Trial Court has been reversed, no categorical finding in regard to possession of any of the parties has been recorded. It is obvious that unless and until the finding of possession is recorded against the 4 present appellant in whose favour the Trial Court had recorded the finding, the first Appellate Court was not justified in reversing the said finding. Perusal of the first Appellate Court' s judgment reveals that the issue of possession was dealt with in a very cryptic manner. 4. In the above referred fact situation, both the learned counsel appearing for the respective parties submit that the judgment and decree passed by the first Appellate Court be quashed and set aside and the appeals be remanded back to the first Appellate Court for denovo hearing and decision thereon in accordance with law. 5. In view of the concessions made available by the learned counsel appearing for the respective parties, I quash and set aside the impugned judgment and decree passed by the first Appellate Court and remand the matters to the first Appellate Court for a fresh hearing and decision on merits. It is made clear that the first Appellate Court shall decide the appeals after hearing the parties uninfluenced by the observations made in this judgment, as this judgment is rendered on the concessions made available by the learned counsel. I hope and trust that the first Appellate Court shall proceed to elaborately consider the question of possession and adjudicate the appeals in accordance with law as expeditiously as possible and preferably within a period of four months from today. All the contentions raised by the parties are kept open to be agitated before the first Appellate Court. The parties shall appear before the first Appellate Court on 02nd April 2009. 5 6. Both the appeals stand disposed of. In view of disposal of the appeals, the Civil Applications therein do not survive and the same are also disposed of. 7. The parties to act on the authenticated copy of the order. JUDGE