bsb 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 CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 523 OF 2006 APPEAL NO. 523 OF 2006 APPEAL NO. 523 OF 2006 Hirabai Shamrao Patil (since deceased by Legal heirs) 1a. Vasant Shamrao Patil & ors. ... Appellants V/s Shivaji Keshav Shinde & ors. ... Respondents Mr. Sanjeev P. Kadam for the appellants. Mr. P.D. Pise for the respondent Nos. 1 to 7. CORAM: CORAM: CORAM: SMT. NISHITA MHATRE, J. SMT. NISHITA MHATRE, J. SMT. NISHITA MHATRE, J. DATED: DATED: DATED: 27TH JULY, 2007. 27TH JULY, 2007. 27TH JULY, 2007. P.C. P.C. P.C.: 1. The plaintiff has filed the present appeal. Her suit was partly decreed by the trial Court, concluding that she had proved her title over half the suit property. The trial Court also declared that the plaintiff was entitled to partition and separate possession. The counter claim of the defendant No.1 was dismissed. The appellate Court has reversed the findings of the trial Court. While allowing the appeal, the appellate Court has dismissed both the suit and the counter claim. Aggrieved by this decision the present second appeal has been filed by the plaintiff. 2 2. It is submitted that the appellate Court ought to have stayed the suit and referred the dispute as to whether the suit property was legally sold, to the Competent Authority under the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947. 3. In my view, this submission cannot be accepted as the suit filed by the plaintiff was for injunction and in the alternative for partition and separate possession of half of the suit property, under a sale deed. She claimed that she was in possession pursuant to a sale deed executed by her landlord, Pandu Aba, in her favour, on 31.1.1986. The appellate Court has held that the relief of injunction was sought for a land which was not described in the sale deed. The appellate Court has rightly refused the injunction as there was no evidence to prove that she was in actual possession of the suit property either as a tenant prior to the sale deed being executed or thereafter as a purchaser. The appellate Court has also observed that permission accorded for the sale by the S.D.O. at Exh.63 does not speak about a specific area of the property Gat No. 1621. The conditions which were required to be fulfilled in terms of Exh.63 had not been fulfilled and, therefore, it was held that the sale was not complete or valid. 3 4. Appeal dismissed. 5. In view of dismissal of the second appeal, the Civil Application No. 960 of 2007 does not survive and is dismissed. .....