:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.23 OF 1993 WITH CIVIL APPLICATION NO.263 OF 1993 IN S.A.NO.23/1993 Amirhamja Amin Mujuwar. ...Appellant. Vs. Shri. Kisam Peersaheb Gundewadi and ors. ...Respondents. Mr.S.G.Deshmukh for the Appellant. Ms. Jai Mhaskar i/by G.S.Godbole for the Respondent Nos.1,3,4,6 and 7. CORAM : R.S. MOHITE,J. DATE : 24th April,2008. ORAL JUDGMENT : 1. Heard Both sides. 2. This appeal is filed by the original plaintiff No.1(a) and has been admitted on the Question Nos. 8,10 and 17 as framed in the appeal memo. The said questions are as follows. 8. That it is absolutely incorrect on the part of the Learned Lower Appellate Judge to say that it was an admitted fact that the original plaintiff-Shaman has gifted the suit property to his Son Peersaheb. It is pertinent to note that :2: it is neither the case of the plaintiff nor the case of the Defendants that the original plaintiff had gifted the suit property to late Peersaheb. 10. That in the case of gift of an immovable property the following things must be taken into consideration. i) It being transfer of an immovable property worth over Rs.100/-, it has to be in writing and duly registered. ii) The suit property being a property purchased under Section 32G of the Bombay Tenancy Act, the same could not have been transferred without there being a permission under Section 43 of the said Act. In the present case, there is no any pleading to the effect that there was any gift nor is there any evidence to that effect. On the contrary, the defence that of a Benami purchase by Peersaheb in the name of the original plaintiff or that of having a title over the suit land by way of adverse possession. 17. That it is apparent that the learned Lower Appellate Judge confused in respect of the maxim :3: "Possession follows the Title".The learned Judge should have seen that once legal title has been established by the plaintiff over the suit land, his legal possession in respect of the suit land has to be inferred. 3. I have perused the entire record. On perusal of the plaint, it becomes clear that the prayer (a) in the plaint pertains to grant of perpetual injunction and prayer (b) was to the effect that if during the pendency of the suit the plaintiff is dispossessed by using services of the goondas then a possession should be restored to the plaintiff. This was clearly not alternative prayer for possession. The plaintiff also did not seek any declaration regarding ownership of his title. During the pendency of the suit the original plaintiff died leaving behind the plaintiff No.1A who is the present appellant. The said plaintiff No.1A stepped into the witness box and gave categorical admission that the original plaintiff had been dispossessed by the sons of one Peersaheb even prior to the filing of the suit. The admission was to the effect that the dispossession was prior to the suit. A police complaint had been filed and the suit had been filed by the original plaintiff. The appellate court has dismissed the appeal filed by the defendant Nos. 1,4,5 and 7 on the short ground that once it was :4: admitted that the possession had been lost prior to the suit, then the suit for simpliciter injunction would not lie. It may be mentioned here that the Trial Court has also refused injunction on this ground but granted decree for possession which in fact was prayed for by the original plaintiff. This decree for possession was over turned by the decree of the Lower Appellate Court which dismissed the plaintiff’s suit in totality. 4. In my view, once it is admitted that the possession was lost prior to the filing of the suit, it cannot be said that the reasonings for dismissing the suit for perpetual injunction was perverse or incorrect. The substantial questions of law as framed therefore, do not arise and therefore, second appeal stands dismissed. 5. It is brought to my notice that the decree for possession passed by the trial court has been executed. The defendants will be entitled for restoration of possession. However, it is directed that such restoration if asked for will not be granted for a period of ten weeks from today. CIVIL APPLICATION NO.263 OF 1993 :5: 1. In view of the dismissal of the main appeal, civil application also stands dismissed. (R. S. MOHITE, J.)