1 S.A.No.421/10. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.421 OF 2010 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.A.K.Gugale, advocate holding for Mr.L.M.Kulkarni, advocate for the appellant. Mr.Rajendra Deshmukh, advocate for the Respondent No.1. CORAM : S.V.GANGAPURWALA,J. Date : 09.12.2010. 1. This is defendant's Second Appeal. The present Respondents had filed a suit for injunction against the defendant. The trial Court decreed the suit. The defendant preferred an appeal. The District Court dismissed the appeal. The defendant has assailed the said judgment in the present Second Appeal. 2. Mr.A.K.Gugale, learned counsel for the appellant submitted that judgments delivered by 2 S.A.No.421/10. both the Courts suffer from perverse appreciation of evidence. The Courts have not considered the Commissioner's report in its proper perspective. There was no reason to discard the report of the Commissioner. If the Courts were to discard the report of the Commissioner then the Court had to make a further inquiry. For the said purpose, the learned counsel relied on a judgment of the Privy Council in a case of "Chandan Mulla Indra Kumar and others Vs. Chiman Lal Girdhar Das Parekh and another" AIR 1940 Privy Council 3. Mr.Gugale, learned counsel further contended that the Commissioner has also been examined and his report and statement should have been relied upon. The learned counsel further submitted that the defendant was a Bataidar since 35 years and his possession was continuous. It was for the plaintiffs to show that they had dispossessed the defendant. The plaintiffs have to show that they were in possession on the date of the suit referable to a legal title. Even the order of the Tahsildar passed in the year 1995, substantiates the case of the 3 S.A.No.421/10. appellant. 3. Mr.R.S.Deshmukh, learned counsel for the plaintiffs contended that there is absolutely no evidence to show that the defendant was a Bataidar. No details are given of the alleged agreement of Batai. The learned counsel further contended that the order of the Tahsildar is void, abinitio inasmuch as it is passed against a dead person. He further contended that the Courts have considered the revenue record which is in favour of the plaintiffs as on the date of filing of the suit. The Courts on consideration of the oral and documentary evidence has come to the conclusion that the plaintiffs are in possession of the property. Even the defendant has not stepped into the witness box and the evidence was led through Power of Attorney holder. 4. With the assistance of the learned counsels, I have gone through the judgments delivered by both the Courts. Regarding the contention that plaintiffs have to show their possession referable to valid title so as to claim the relief of injunction is concerned, the same is 4 S.A.No.421/10. not sustainable. The plaintiffs only have to show that they are in possession on the date of filing of the suit. The said possession should be a settled possession, need not referable to a valid title as has been held by the Apex Court in a case of "Rame Gowda (Dead) By L.Rs. Vs. M.Varadappa Naidu (Dead) by L.Rs. and another" (2004) 1 SCC 769. In the present matter, the defendant himself is claiming through Ratnakar. It is not disputed that the plaintiffs are sons of Ratnakar. In that view of the matter also the plaintiffs would be the owner of the property. 5. The contention that the name of the defendant was recorded in the year 1986-87 is concerned, the Courts have observed that the defendant can not take benefit of solitary entry. The defendant was claiming to be a Bataidar and in possession for more than 35 years. There is no such record to substantiate this fact. The Courts below have also discussed the grounds on which the Commissioner's report can not be relied upon. The view taken by the Courts below is a possible view. The Second Appeal can not be entertained 5 S.A.No.421/10. only on the ground that some other view is also possible as has been held by the Apex Court in a case of "Vidhyadhar Vs. Mankikrao and another" AIR 1999 Supreme Court 1441. 6. In light of the above, the Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.09.12.2010. asp/office/sa42110 6 S.A.No.421/10.