1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1530 OF 2005 The Cantonment Board, Aurangabad, through its Executive Officer, Cantonment, Aurangabad. Appellant Versus 1 Prakashchandra s/o Kachradas Bakliwal, deceased, through his L.Rs.: 1-A) Mainadevi w/o late Kacharadas Bakliwal, age: 75 years, Occ: Household, R/o Shahgunj, Aurangabad. 1-B) Ramanlal s/o Kacharadas Bakliwal, age: 60 years, Occ: Business, resident of as above. 1-C Sureshchandra s/o Kacharadas Bakliwal, aged: major, Occ: Business, R/o Aurangabad. 2) The J.C.Malati Gupta Khushabu Butic (Ellora J.C.Club), 29, Nirala Bazar, Aurangabad. Respondents Mr.D.V.Soman, advocate for the appellant. Mr.S.V.Gangapurwala, advocate for Respondents. 2 CORAM: R.M.BORDE, J. DATE : 09.09. 2009. P.C.: 1 This is an appeal by original defendant raising exception to the concurrent judgments delivered by both the Courts below. 2 Respondent-plaintiff presented suit bearing Regular Civil Suit No.890 of 1992 claiming decree of perpetual injunction restraining defendants / appellant herein from obstructing his possession in respect of land S.Nos.157, 158 and 167 situate at Karnapura, Cantonment, Aurangbad. Plaintiff claims to be in actual possession of the disputed property. It is his contention that defendant-Cantonment board is obstructing his possession over the disputed property. As such, he approached the Court seeking protection. 3 Defendant-board disputed the contention raised by plaintiff in respect of his possession over the suit property at any point of time or that he is owner thereof. Thus, defendant payed for dismissal of the suit. 4 On the basis of pleadings of the parties, issues were framed and one of the issue was that, “whether the plaintiff proves that he is the owner and possessor of suit land”. Said issue was not pressed by the plaintiff. As such, issue in respect of declaration of ownership as well as possession, as framed by the trial Court vide issue no.1, was not decided. However, trial Court proceeded to decide the issue in respect of present possession of the plaintiff over suit land and finding that the plaintiff is in possession of the suit property, clamped a prohibitory order against 3 defendants restraining them from interfering in the possession of plaintiff over suit land, without following due procedure prescribed under law. 5 An appeal was carried by defendant-cantonment board, being Regular Civil Appeal No.334/2001, which came to be heard and disposed of by 2nd Ad hoc Additional District Judge, Aurangabad, who, after hearing both the parties, was pleased to dismiss the same. 6 Original plaintiff claimed ownership in relation to the suit property, which contention has been controverted by the defendant. The contention of the plaintiff in respect of his possession over the suit property has also been controverted by the defendant. The issue, therefore, arises as regards ownership as well as possession of the plaintiff over the suit property. The plaintiff has given up the issue in respect of his ownership and as such, same was not decided by the trial Court. In these circumstances, therefore, trial Court proceeded to direct defendants not to obstruct in plaintiff's possession without following procedure prescribed by law. 7 The judgment and order passed by the trial Court has been confirmed by the first appellate Court. Thus, it reveals, on perusal of judgments of both the Courts below, that plaintiff has not established his claim in respect of ownership in the suit. Defendants are, thus, free to take steps for securing possession of the property by following procedure prescribed under law and there shall not be any impediment in the way of defendants in taking legal recourse for recovery of property from the plaintiff. 4 8 In the peculiar facts and circumstances of this case, as liberty has been granted by the trial Court to defendants for recovering possession of the property by adopting procedure prescribed under law, no interference is called for in the Second Appeal. 9 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa153005