1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 33 OF 2010 Karbhari s/o Govind tingote & another .. APPELLANTS VERSUS Dagdabai w/o Nana Kirtishahi & others .. RESPONDENTS Mr. S.S. Gangakhedkar, Advocate for the appellants. Mr. P.M. Gaikwad, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 28 th January, 2010 PER COURT : 1 This is an appeal by original defendants raising exception to the judgment and decree passed by the District Judge – 3, Aurangabad on 26-10-2009 in Regular Civil Appeal no. 280/2006 thereby reversing the judgment and decree passed in Regular Civil Suit no. 131/2002 by the Civil Judge, Jr.Dn., Gangapur on 2-8-2006. 2 Respondents / original plaintiffs instituted suit claiming decree of injunction simplicitor against the defendants. Plaintiffs contend that their 2 father Nana died in 1989 and on his demise, plaintiffs applied to the revenue authority for recording their names in the revenue record and the application tendered by the plaintiffs was considered by the revenue authority and the names of the plaintiffs were directed to be incorporated by virtue of mutation entry no. 1442 sanctioned on 14-1-1991. Since 1991 onwards, the names of plaintiffs are recorded in the revenue record. Prior to recording of names of the plaintiffs in the revenue record, name of their father appears since 1967. Thus, according to plaintiffs, defendants have n o entitlement to the property. Defendants appeared and controverted the contentions raised by the plaintiffs contending that they are also entitled to the property and, therefore, no decree of injunction can be passed against them. 3 Trial court did not find favour with the case put up by the plaintiffs and dismissed the suit mainly on the ground that the plaintiffs have examined power of attorney holder and that evidence cannot be taken into account to substantiate the case put forth by the plaintiffs. The first appellate court after considering the documentary as well as oral evidence led by the parties recorded finding that the plaintiffs have substantiated their case and as such granted decree in their favour. 3 4 I have perused the judgments recorded by both the courts below. It transpires on perusal of the judgments that admittedly name of deceased Nana appeared in the revenue record as owner and cultivator of the property since 1967 till his death. On demise of Nana, revenue record is corrected and names of plaintiffs are stated to have been incorporated since 1991. On the date of presentation of the suit, revenue record shows plaintiffs as the owners and cultivators of the property. So far as defendants are concerned, they did not raise any challenge to the entitlement of deceased Nana since 1967 till his death nor any time thereafter till the year 2002 until the plaintiffs were required to approach the court because of the interference caused by the defendants. Argument advanced by defendants that the evidence of power of attorney cannot at all be taken into account has been rightly rejected by the first appellate court. On perusal of evidence of the power of attorney holder it transpires that he is stating the factum of possession of the plaintiffs and has not stated anything which is within the exclusive knowledge of the plaintiffs. I do not find that the first appellate court has committed any error in appreciating the evidence placed on record and recording finding in respect of the factual aspects such as present possession of the plaintiffs in relation to the suit property. In exercise of powers under section 100 of the Code of Civil Procedure, no 4 interference is called for in the appeal. Arguments advanced are essentially matters relating to appreciation of evidence. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 5 In view of dismissal of appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa33.10.odt