( 1 ) sa323.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 323 OF 2011 WITH C.A. NO. 8131 OF 2011 AND SECOND APPEAL NO. 324 OF 2011 WITH C.A. NO. 8134 OF 2011 Prabhu s/o. Baliram Sul since deceased through his LRs & Ors. .. Appellants Versus Shanta w/o. Bhagwat Karande & Anr. .. Respondents Mr. R.S. Deshmukh, Advocate for the appellants. Mr. S.B. Madde, Advocate for respondent Nos. 1 & 2. CORAM : A.V. NIRGUDE, J. DATED : 06.09.2011 P.C. :- 1. These Second Appeals challenge concurrent findings of the Courts below. The Courts below held concurrently that on the date of suit the respondents were in possession of the suit property. The suit property is a small plot of six guntha area in land Survey No. 110 of Village Arvi, Tq. Latur. The Courts below also held that during the pendency of the suit, the appellants dispossessed the respondents of this land in October, 2004, taking advantage of an ex-parte temporary injunction order passed against the respondents. The Courts below therefore felt obliged to pass a decree of possession although the respondents did not specifically plead and seek relief of possession. The Courts below held that such decree is permissible in peculiarity of ( 2 ) sa323.11 the facts of the case and in exercise of Section 151 and Section 94 of the C.P.C. The Courts below also placed heavy reliance on the judgment of the Bombay High Court in the case of Harishchandra Narayan Maurya Vs. Rajendraprasad Dargahi Varma, reported in 1997(1) Bom.C.R.28. 2. The learned Counsel appearing for the appellant contended that the question as to whether the Courts below could have granted the decree for possession utilizing powers under Section 151 and Section 94 of the C.P.C. could be a substantial question of law. However, he is unable to show any judgment which would dislodge the ratio of the case of Harishchandra referred to above. The appellant then made submission that the Courts below erred in ignoring two vital aspects of the case. He pointed out that there occurred joint measurement of the suit property during the pendency of the suit. The measurement report was filed before the Court and was proved. This report, he said, clearly supported the case of the appellants/plaintiffs. He then pointed out that there was no issue about the respondents/defendants’ dispossession during the pendency of the suit. He pointed out that without such issue the Courts could not have decided as to whether the appellants/plaintiffs had dispossessed the respondents/defendants from the suit property after filing of the suit and taking advantage of ( 3 ) sa323.11 the ex-parte order of temporary injunction granted in his favour. Indeed, there was no clear issue framed by the learned Judge of the Trial Court in respect of dispossession of the respondents/defendants during the pendency of the suit. However, the learned Judge of the Trial Court while discussing the issue of possession discussed the evidence that had come on record in respect of possession and then dispossession during the pendency of the suit. The discussion on this issue is found to be elaborate and the lacunae of absence of issue does not really go to the root of the case. The Courts below also discussed as to why they would not give importance to the joint measurement to the Court. This aspect is clearly of facts and I am not going into such controversy at this stage. These appeals do not give rise to any substantial question of law. The Second Appeals stand dismissed. 3. In view of dismissal of the appeals, connected civil applications do not survive and stand disposed of. [A.V. NIRGUDE, J.] snk/2011/SEP11/sa323.11ok