(1) WP. 3698.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3698 OF 2010 Kisan Dagadu Jadhav and anr. .. Petitioners VERSUS Shri Danmal Punamchand Sabuwala .. Respondent Mr. S.V. Natu, Advocate for the Petitioners Mr. R.R. Mantri, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 28TH JULY, 2010 ORAL ORDER:- 1. Heard counsel. The petitioners are defendants in suit (R.C.S. 101 of 1998). The suit is simplicitor for injunction. The petitioners filed an application (Exhibit 122) and sought re-casting of the issues. The learned Civil Judge by order dated 6.2.2009 partly allowed the application and framed additional issues. The petitioners thereafter filed application (Exhibit 160) praying for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure on the ground that it was not properly (2) WP. 3698.2010 valued for the purpose of jurisdiction and payment of Court fees. While dismissing that application, the trial Court deleted issue no.1 which pertained to the ownership. 2. The issue no.1 framed in the suit is as follows:- "Does the plaintiff prove that he is the owner of suit plot nos.15,16 and 17? 3. It is pertinent to notice that the suit is not for declaration of ownership or for declaration of the plaintiff’s title as such. The only contention of the plaintiff is that he is in lawful possession of the suit plots and that the defendants i.e. the petitioners had caused unlawful obstruction in his possession. Obviously, the only material issue required to be determined is whether the respondent/plaintiff is in actual possession of the suit plots and the possession is referrable to lawful source/origin/right, as the case may be. In such a suit, the plaintiff is not strictly required to prove his ownership rights or title. The right to remain (3) WP. 3698.2010 in possession may be based on ownership or title or possessory title or lawful origin, as the case may be, and such issue is only of incidental nature. That being the settled legal position, it is difficult to find fault with the impugned order. 4. Contention of learned counsel Mr. Natu is that once the issue of ownership was framed, and when the earlier application for re-casting of the issues was rejected, there was no substantial reason for the trial Court to strike off the issue no.1 at the subsequent stage. He also referred to certain observations in “Samrat Furniture and others Vs. Bhaurao S/o Natthuji Mankar 2001(Supp.2)Bom.C.R. 53”. The learned Single Judge of the Nagpur Bench of this Court observed that deletion of issue regarding the ownership in the suit for perpetual injunction, on the ground that ownership of the property of the plaintiff-firm was not proper because the assertion of the defendant was that the property was in fact purchased by him but the plaintiff no.2 had taken disadvantage of his illiteracy and got it registered (4) WP. 3698.2010 in the name of plaintiff no.1-firm. The fact situation in the given case was on altogether different footing. The issue of ownership is not germane to the nature of lis and controversy involved in the present case. 5. In this view of the matter, I do not find any substantial reason to interfere with the order rendered by the trial Court. Petition disposed of. Ad-interim relief stands vacated. Sd/- [V.R. KINGAONKAR, J.] arp