1 Second Appeal No. 743.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.743 OF 2006 Ramesh Panditrao Patil .. APPELLANT VERSUS Sukhdeo Kashinath Patil ...RESPONDENT ... Shri R.C. Patil, Advocate for the appellant Shri H.D. Patil for respondent /State CORAM : S.V. GANGAPURWALA, J. DATE : 6th December, 2010. PER COURT : This is plaintiff’s Second Appeal. The plaintiff had filed a suit for declaration that the sale-deed executed in favour of defendant is illegal, null and void, the same was by way of security transaction. The defendant filed a counter claim seeking relief of injunction. The trial Court dismissed the suit and decreed the counter claim. The plaintiff preferred an appeal. The appellate Court dismissed the appeal, confirming the Judgment and Decree passed by the 2 Second Appeal No. 743.06 Trial Court. The plaintiff has assailed the said Judgment in the present Second Appeal. 2. Shri R.C. Patil, learned Counsel for the appellant strenuously contended that the plaintiff is in possession of the property and as the plaintiff is in possession of the property, the trial Court could not have decreed the counter claim and clamped injunction against the plaintiff. According to learned counsel both the Courts have committed an error in appreciating the evidence properly, there is a perverse appreciation of evidence. 3. With the assistance of learned Counsel for the respective parties I have gone through the judgments passed by both the Courts below. The present plaintiff had earlier filed a suit bearing Special Suit No. 90 of 1996, the same was dismissed, when earlier suit itself is dismissed for non prosecution. The subsequent suit for the same properties is not tenable. Both the Courts have considered the said aspect rightly and dismissed the suit. The Courts below have 3 Second Appeal No. 743.06 considered the oral evidence on record and concurrently come to the conclusion that the defendant is in possession of the suit property, there is no perversity in the appreciation of evidence. The Courts below found that the plaintiff handed over the possession of the suit land on the date of execution of sale-deed. 4. In the light of the above, no error in the Judgments of the Courts below. The Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM* 743.06SA/61210