1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.357 OF 2010. Shirish S/o Ramkrishna Pophale ... Appellant. Versus Chandrashgekar S/o Ramkrishna Pophale ... Respondent. ... Mr.S.P.Urgunde, advocate for the appellant. Mr.Milind Patil, advocate for the Respondent. ... CORAM : S.V.GANGAPURWALA,J. Date : 11.10.2010. PER COURT 1. This is original defendant's Second Appeal. The Respondent-plaintiff had filed a suit for injunction restraining the defendant from interfering in his possession over the suit property admeasuring 55x50 fts. The trial Court 2 decreed the suit. In appeal, the judgment and decree of the trial Court was confirmed. The defendant has approached this Court assailing the said judgment. 2. Mr.Urgunde, learned counsel for the appellant submitted that the property has been bequeathed to the defendant by mother by a Will- deed executed on 17.11.1999. As such he became the owner and possessor of the said property by virtue of the said Will-deed. Mr.Urgunde, further submitted that it is not disputed that the present appellant is in possession of the part of the property which is evident from the judgment of the Courts below. Even the plaintiff had admitted that the defendant is in possession of the part of the property. According to him, no injunction could have been clamped against the person in possession of the property. 3. Per contra, Mr.Patil, learned counsel for the Respondent submits that the plaintiff has nowhere admitted that the defendant is in possession of the part of the suit property. He 3 is in possession of a portion of a property which is not the subject matter of the suit property. According to him, the mother had executed a registered sale deed in favour of the plaintiff on 7.4.1983 and since then the plaintiff is the lawful owner and possessor of the suit property. 4. With the assistance of the learned counsel for the respective parties, I have gone through the judgments passed by both the Courts below. The subject matter of the suit was property admeasuring 55x50 fts. of plot No.3. The whole plot No.3 admeasures 110x50 ft. and while stating the boundaries, it has been specifically stated that towards the eastern side the defendant is in possession. The part in which the defendant is in possession is not the subject matter of the suit property. When the mother on 7.4.1983 had sold the said property to the plaintiff then in 1999 the mother had got no title to bequeath the suit property to the defendant in the year 1999. 5. The Courts have considered this aspect. 4 So also the aspect of actual, physical possession. No substantial question of law is involved. The Second Appeal is dismissed. However, there shall be no order as to costs. 6. In view of dismissal of Second Appeal, the Civil Application does not survive and the same is disposed of. (S.V.GANGAPURWALA,J.) asp/office/sa357.10