1 SA 194.2008 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 194 OF 2008 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr. K.C.Sant,Advocate for the appellant .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 21/03/2011 PER COURT : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for mandatory injunction seeking direction against the respondents to remove the flour mill on the ground that the respondents were licencee of the said flour mill. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court dismissed the Appeal confirming the Judgment and decree passed by the trial Court. Being aggrieved thereby, the plaintiff has filed present Second Appeal. 3. Mr. K.C.Sant, the learned counsel for the appellant strenuously contends that the trial Court had categorically come to the conclusion that the 2 SA 194.2008 plaintiff has proved his ownership over the suit property. The relief of mandatory injunction was refused only on the ground that the flour mill is not in existence since 10-12 years. The learned counsel contends that the defendant was a licencee and the licence was terminated and as such licence has been terminated. As such, the defendant has no right and authority to remain over the said floor mill. The learned counsel further contends that the lower appellate Court has reversed the finding of ownership only on mere assumptions when the brothers had not disputed, the defendant had no right to dispute the same. 4. Per contra, Mr. P.S.Shendurnikar, the learned counsel for respondent nos. 1 to 5, 7 and 8 submits that the Courts below have properly construed the matter on hand. The plaintiff could not prove his exclusive ownership as plaintiff came with the case that Ganeshlal had established the flour mill, he was survived by four ( 4 ) sons. As such, without proof of partition, the plaintiff could not get exclusive ownership and further the flour mill is not in existence, no question of termination of licence arises. 5. With the assistance of the learned counsel, I have gone through the Judgments. 3 SA 194.2008 6. The plaintiff has admitted that the flour mill was established by Ganeshlal. Ganeshlal is survived by four ( 4 ) sons is also accepted by the plaintiff. In that light of the matter, the plaintiff can not claim exclusive ownership unless and until the plaintiff proves either partition, relinquishment of the right of other brothers or some mode of acquiring absolute ownership. In such circumstances, without the consent of other co- owners, the plaintiff could not have sought possession. The defendants are the sons of real brother of plaintiff. Even they are the co-owners. It was not the plaintiff’s case that the defendant is a trespasser. But, the plaintiff came with the positive case that the defendant is a licencee. More over, when both the Courts have come to the conclusion that prior to 10-12 years, the flour mill itself is not in existence, then no mandatory injunction in respect of the flour mill could have been granted. The Courts below have not committed any error while coming to the conclusion. The Second Appeal being devoid of any substantial question of law, is dismissed however with no order as to costs. [ S.V. GANGAPURWALA,J. ] 4 SA 194.2008 KNP/SA 194.2008