-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 606 OF 2008 ALONGWITH CIVIL APPLICATION NO. 1559 OF 2008 IN S.A. NON 606 /2008 Prabhakar R.Goregaonkar (Deceased) Pratidhya P.Goregaonkar & Ors. .. Appellants. (Org.Defendant) V/s. Anant Mahadu Goregaonkar .. Respondent. (Org.Plaintiff) --- Mr.A.N. Mulla for the Appellants. Mr.M.A. Patil for the Respondent. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 30th September, 2008. DATED : 30th September, 2008. DATED : 30th September, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Mulla for the appellants and Mr. Patil for the Respondent. 2. This is an appeal by the original defendant. The respondent-plaintiff’s suit for declaration and grant of mandatory and permanent injunction was dismissed by the trial court. The lower appellate court allowed the appeal of the respondent and reversed trial court’s decree. Consequently, the declaration and injunction as claimed was granted. 3. Mr. Mulla the learned counsel for the appellant -: 2 :- made three submissions - viz. (i) that there is joint family in existence, consisting of the appellants and the respondent and merely because the respondent’s name is recorded in the suit property, it cannot be said that the suit property in question exclusively belongs to him. He submitted that since there is no partition, respondent’s name is presumed to have been recorded for himself and on behalf of the appellants; (ii) that the name of the respondent is recorded in the city survey record of the suit property, in the city survey inquiry and subsequently the Sanad is issued in his favour, however, respondent did not prove the contents of the Sanad and, therefore, same could not have been relied upon by the lower appellate court to decree the suit; (iii) that the respondent’s suit was for declaration and grant of permanent and mandatory injunction and therefore, the lower appellate court committed error in granting possession to the respondent. 4. The first submission of the learned counsel for the appellant, in my opinion, is devoid of any merit. It was a specific case of the respondent that partition of joint family property was effected the year 1960 and in that partition, the suit property was allotted to his share and subsequently there was a city survey enquiry in which his name is recorded to the suit property and the -: 3 :- Sanad was issued to that effect. The lower appellate court accepted the case of the respondent about partition. In view of the above finding of the lower appellate court now it cannot lie in the mouth of the appellant that he is co-parcener alongwith the respondent and therefore, entitled to have share in the suit property. 5. So far as the second submission, namely, the contents of the Sanad are not proved, is concerned, the same is also devoid of any merit. Perusal of the impugned judgment and decree reveals that in the city survey enquiry, the respondent’s name was recorded to the suit property and thereafter Sanad is issued. The entry in the city survey record has got presumptive value even if the Sanad in favour of respondent is ignored in that case also in my opinion, the respondent has proved his case of partition and allotment of the suit property to his share. 6. Sofar as the third submission that the respondent did not claim possession of suit property is concerned, the same is misconceived. I have perused the plaint and in the plaint the respondent asked for declaration that Khoka (Stall) installed by the appellant in the suit premises is without any authority and prayed for removal -: 4 :- of the said Khoka (stall). The respondent also prayed for declaration to the effect that the appellant has no concerned with the suit property. Consequently, injunction was also claimed that the appellant should not interfere in respondent’s possession in the suit property. The appellate court by the impugned judgment and decree directed the appellant to remove the Stall (Khoka) from the suit property. The appellant was also restrained from permanent injunction from obstructing peaceful possession of the respondent therein. In the light of the above facts, I do not find any substance in the last submission of the appellant. 7. The second appeal does not involve any substantial question of law. The same is, therefore, dismissed. 8. In view of the dismissal of the appeal, civil application will not survive and the same stands disposed off as such. 9. Mr.Mulla for the appellant, at this stage requests for continuation of the ad-interim relief order dated 16.09.2008 for a further period of four weeks. Mr.Patil, learned counsel for the respondent, opposes the said prayer. However, in the interest of justice, -: 5 :- ad-interim relief granted on 16.09.2008 is continued for a period of four weeks from today. (R.V.MORE,J.)