1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 381/2006 (Keshaorao Uttaraji Surkar Vs. Ramrao Gulabrao Thakre) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 26 th AUGUST, 2008. Heard Shri A.P. Chawre, the learned counsel for the appellant, and Shri A.L. Deshpande, for the respondent. The appellant is the original plaintiff. A suit was filed by the plaintiff for perpetual injunction restraining the defendant from interfering with the peaceful possession of the plaintiff over the suit property. According to the plaintiff, the suit property, initially, belonged to one Vishwanath and the plaintiff had purchased the same from Vishwanath by a registered sale deed dated 25/6/1991. According to the plaintiff, the defendant was trying to dispossess the plaintiff from the suit property and also taking the crops from the same. Since the defendant was obstructing the cultivation of the plaintiff, the plaintiff instituted the suit for permanent injunction. 2 The defendant denied the claim of the plaintiff and pleaded that he was cultivating the suit field since the year 1989. According to the defendant, the plaintiff was not in possession of the suit field, at any point of time, and was, therefore, not entitled to claim permanent injunction against the defendant. The defendant sought for the dismissal of the suit. The trial Court held that the plaintiff had succeeded in proving his ownership over the suit property and also proving that he was in lawful possession of the suit property on the date of the institution of the suit. The trial Court, however, held that the plaintiff had lost his possession during the pendency of the suit. Though a relief of possession was not sought by the plaintiff by duly amending his plaint, the trial Court held that the plaintiff was entitled to the restoration of possession and hence, the trial Court directed the defendant to hand over the possession of the suit property to the plaintiff. The judgment passed by the trial Court was challenged by the defendant in appeal. The first appellate Court held that the plaintiff had proved his ownership over the suit property. On an appreciation of the material evidence on record, the first appellate Court, however, held that the plaintiff had not succeeded in proving that he lost the 3 possession of the suit property during the pendency of the suit. The first appellate Court further held that the plaintiff was not entitled to seek the possession of the suit field from the defendant as the plaintiff had not amended the plaint and sought such relief. The first appellate Court observed that the plaintiff had admitted in his cross-examination that at the time of tendering of evidence, the defendant was in possession of the suit field and his name was also recorded in the 7/12 extract. On the appreciation of the evidence on record, the first appellate Court further held that the defendant was in possession of the suit field since the year 1989. Since the suit was simplicitor for grant of permanent injunction and since the first appellate Court held that the plaintiff had not succeeded in proving his possession over the suit property, the first appellate Court reversed the judgment passed by the trial Court by allowing the appeal. No fault can be found with the judgment of the first appellate Court. The first appellate Court has re-appreciated the entire evidence on record to hold that the defendant had proved his possession over the suit property since the year 1989 and the plaintiff had admitted that he was not in possession of the suit property at the time of recording of evidence. In the absence of any amendment to the 4 plaint, the plaintiff was not entitled to recover the possession of the suit property from the defendant even if the plaintiff would have lost the possession during the pendency of the suit. The first appellate Court has, however, recorded a finding that the possession of the plaintiff was not lost during the pendency of the suit. The findings recorded by the first appellate Court are pure findings of facts which are based on a proper appreciation of the material evidence on record. Since they do not give rise to any substantial question of law, Second Appeal is dismissed with no order as to costs. JUDGE RMP