1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.1474 OF 2005 Umesh Balkrishna Lodh .. Appellant Versus Waman kashinath Rahate & Ors. .. Respondents Mr.S.P.Thorat for appellant Mr.S.S.Deshpande for respondent No.1 CORAM : S.C.DHARMADHIKARI, J. DATE : 1st August 2007. P.C. . This second appeal is by the original defendant. The original defendant is aggrieved by the orders passed in respondent’s - original 2 plaintiff’s suit being Suit No.77 of 2000 decreed by the lower appellate court. 2. Mr.Thorat appearing for appellant defendant would submit that the lower appellate court was in error in decreeing the suit filed for perpetual injunction when the remedy of respondent was not to apply for injunction simplicitor but file a substantive suit claiming a declaration that they have right, title and interest in the land. He submits that one Deorukhkar was the co-owner of the portion/suit property. It is alleged that the said Deorukhkar inducted original plaintiffs. If that was so, then, respondents are stepping in the shoes of Deorukhkar as co-owners of the suit property. They cannot claim any injunction against the present appellant who are true owners and in any event co-owners along with Deorukhkar. The suit was rightly dismissed by the trial court but reversal of that decree in violation of the 3 settled principle that no injunction can be obtained against the true owner, gives rise to substantial question of law. 3. I am unable to accept this contention for more than one reason. The suit was laid in the court of Civil Judge Junior Division by the original plaintiffs, who were in possession of the suit land and running a shop therein. Sadanand General Stores is the shop located on the land and the court below has found, consistent with the oral and documentary evidence on record that it is so situate and located for the last more than 17 years. It is assessed to payment of property tax. Plaintiffs do not say that they are co-owners. All that they pray is that the settled possession should not be obstructed and interfered with by the appellant defendant, save and except by the due process of law. 4 4. After perusing the judgement of the courts below, I am unable to find out as to how the principle that one co-owner cannot obtain injunction against another co-owner is applicable in the facts and circumstances of this case. Admittedly, this is not a suit by Deorukhkar but by the original plaintiffs, claiming to be in settled possession of immovable property and requesting the court that their possession should not be disturbed, save and except by due process of law. That they are in settled possession is clear from a perusal of the materials produced before the courts below. In such circumstances, the lower appellate court has rightly stepped in and decreed the suit. It has rightly observed that the principle followed by the trial court cannot be applied and its application to the instant facts and circumstances is wholly erroneous. What I find from the judgement of the lower appellate court is that it has performed its duty as first appellate court which could 5 interfere with the trial court’s decree both on question of law and facts. The lower appellate court having rendered a judgement and decree consistent with the oral and documentary evidence, I find no reason to interfere. More so, when the legal principle pressed into service by Mr.Thorat has no application. 5. The judgement of the Supreme Court cited by Mr.Thorat in the case of Premji Ratansey Shah and Ors. Vs. Union of India and Ors, reported in 1995(2) Bom.C.R. 374 and the principle laid down therein would not be applicable, for obvious reasons, to the facts of this case. A co-owner is not seeking any injunction against another co-owner nor is this an injunction by a tres-passer or a complete stranger against true owner. The claim for injunction is by a person who is in settled possession and whose entry in the property has not been found to be unauthorised and unlawful. 6 6. There being no substantial question of law and limited as this Court’s jurisdiction is under section 100 of C.P.C., the second appeal does not deserve to be admitted. It is accordingly dismissed. Neither the decree of the lower appellate court nor observations of this Court in the present order, shall prevent the appellant before me from filing substantive suit to assert his right, title and interest in the property as co-owner or otherwise and all such observations would not be an impediment for the court to try such substantive suit, if filed. Second appeal is accordingly dismissed. 7. In the light of the disposal of this second appeal, C.A. does not survive and it is accordingly dismissed. All interim orders to stand vacated. 7 (S.C.DHARMADHIKARI, J)