1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.92 OF 2011 _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ Mr.V.V.Ingale and Mr.S.A.Wakure, advocates for the appellant. Mr.M.B.Kolpe, advocate for the Respondent Nos.4 and 5. CORAM : S.V.GANGAPURWALA,J. Date : 29.03.2011. 1. This is defendant's Second Appeal. The plaintiffs had filed suit for declaration of ownership and injunction in respect of property as detailed in para 1 of the plaint. The trial Court dismissed the suit. The plaintiff preferred appeal. The appellate Court allowed the appeal, clamped injunction against the Respondents from causing obstruction to the possession of the plaintiffs over property CTS No.1271 admeasuring 80x70 fts. as described in para 1 of the plaint. The defendant being aggrieved by the same has filed the present 2 Second Appeal. 2. Mr.Ingale, learned counsel for the appellant contended that the plaintiffs have not demarcated the property properly. The plaintiffs could not show their actual and physical possession over the said part of the property as described in the plaint. The said description does not tally with the record of the City Survey. The plaintiffs could not produce any documentary evidence to show their entitlement to the possession of the suit property nor could show their actual, physical possession. The learned counsel contended that the lower appellate Court while reversing the finding of fact arrived at by the trial Court has not come within the close quarters of the reasoning given by the trial Court. 3. Per contra, Mr.Kolpe, learned counsel for the Respondents submitted that the plaintiffs were declared as encroachers over the said property and it has been shown in the record that the plaintiffs are possessors of the suit property. When the Government record shows the plaintiffs are in occupation of the property, the same is also 3 supported by the oral evidence. The lower appellate Court has properly examined the same. 4. With the assistance of the learned counsels, I have gone through the judgments. The Courts have observed that the plaintiffs were shown as encroachers over the Government property i.e. S.No.144. There is nothing on record to show that the defendant No.1 at any point of time was in possession of the property and he had no right to sell the property. The land being a Government land, the Courts have rightly denied the relief of declaration in favour of the plaintiffs and the Courts have also properly appreciated that the defendant would not have sold the said property to the present appellant when the defendant No.1 himself did not have the title, it being a Government land. The Government record showed the possession of the the plaintiffs as encroachers. In such circumstances, the plaintiffs have every right to protect their possession against these defendants who do not have any semblance of right. The injunction in favour of the plaintiff is restricted to 4 an area of 80x70 fts. in CTS No.1271 of which the Courts have found the plaintiffs to be in possession. 5. In that light of the matter, no error has been committed by the Courts below while passing the impugned judgments which are based on appreciation of the evidence. The Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.29.03.2011. asp/office/sa92.11 5