1 SA 802.2009 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 802 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.R.C.Patil,Advocate for the appellant. Mr.P.S.Patil,Advocate for Resp. no. 1 & 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/03/2011 PER COURT : 1. This is plaintiff’s Second Appeal. The plaintiff had filed Suit for injunction restraining the respondents from interfering in his possession. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court dismissed the Appeal confirming the Judgment and decree passed by the trial Court. The plaintiff has assailed the said Judgment and decree in the present Second Appeal. 2. Mr. R.C.Patil, the learned counsel for the appellant contends that the lower appellate Court has failed in its duty in as much as point for 2 SA 802.2009 determination as per the requirement of Order XLI Rule 31 of the Code of Civil Procedure have not been framed. The learned counsel further contends that no evidence has been discussed by the Court below and the Judgment has been delivered in slipshod manner. The learned counsel contends that the plaintiff is the owner of the property and the oral evidence has been led establishing the possession of the plaintiff. As the lower appellate Court has failed to consider the evidence on record, the matter requires to be remitted to the lower appellate Court 3. Per contra, Mr. P.S.Patil, the learned counsel for the respondents submits that the lower appellate Court was concurring with the Judgment of the trial Court as such no detailed reasoning is required. The plaintiff himself has admitted that the defendants were the tenants over the suit property. It is nowhere shown that the plaintiff has taken the possession back. Even the revenue record shows that the possession was with the respondents. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. No doubt, provisions of Order XLI Rule 31 of 3 SA 802.2009 the Code of Civil Procedure casts duty on the lower appellate Court to frame points for determination. But, failure to do so would not vitiate the said Judgment. In the present case, the plaintiff himself came with the case that the land was given to the defendant nos. 1 and 2 on batai basis. The plaintiff could not show the date on which he received the possession from the defendants. The presumption would be in favour of continuity of possession unless the plaintiff proves the fact that he has taken up possession back from the defendants. The evidence in this regard is lacking. The trial Court has discussed the oral and documentary evidence and has arrived at the conclusion that the plaintiff could not prove his possession. The lower appellate Court was concurring with the Judgment of the trial Court. No doubt, the Judgment passed by the lower appellate Court is not a detailed Judgment. The lower appellate Court has observed that the plaintiff is entitled to seek relief of possession and the point of tenancy is also involved. The lower appellate Court concurred with the Judgment of the trial Court. 6. The Judgment delivered by the lower appellate Court did not suffer from any illegality so far as appreciation of evidence on the basis of the 4 SA 802.2009 depositions of witnesses and the documentary evidence is concerned. 7. In light of the same, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 802.2009