(1) SA. 228.2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 228 OF 2007 Eknath S/o Dagadu @ Balaji Sherkar .. Appellant VERSUS Sahebrao S/o Dagadu @ Balaji Sherkar and another .. Respondents Mr. G.K. Thigale, Advocate for the Appellant Mr. Dhananjay Deshpande, Advocate for respondent no.2 S.A. stands abated against respondent no.1 as per Court's order dated 26.11.2008 ... CORAM : K.U. CHANDIWAL, J. DATED : 27TH APRIL, 2010 PER COURT:- 1] Heard Mr. Thigle and Mr. Deshpande for respective parties. Regular Civil Suit no. 125 of 1996 by appellant Eknath seeking declaration of ownership and perpetual injunction was decreed by the learned Civil Judge Junior Division, Beed on 19.7.2005, to the extent restraining the defendant no.2 permanently from obstruction of the plaintiff's peaceful possession and enjoyment of the suit house CTS 8163 and 8164 while the defendant no.1 was permanently restrained except one room eastern side of suit house from obstruction of plaintiff's remaining suit house possession and enjoyment. The aggrieved defendant took the matter before the first appellate Court in First Appeal being Regular Civil (2) SA. 228.2007 Appeal no. 143 of 2004 and learned Additional District Judge, Beed on re-appreciation of the evidence found that the plaintiff Eknath could not establish his legal title to the property nor he could establish that the original defendant no.2 has obstructed in his possession as stay could not be granted in favour of the plaintiff. 2] During the pendency of the proceedings the defendant no.1 brother of the plaintiff settled the controversy by pursis exhibit 69. There was no written statement by original defendant no.2 Abdul Khaled. The plaintiff came with a case, he has encroached upon the property belonging to the Government and sought declaration of his ownership. 3] In order to stress the point Mr. Thigle placed reliance on the judgment of the Apex Court reported in AIR 1972 SC 2299 (M. Kallappa Setty Versus M.V. Lakshminarayana). The plaintiff claimed to be in possession of the suit property, on the strength of his possession, resisted interference from the defendant who has no better title than himself and got injunction restraining defendant from disturbing his possession. In the said case, the plaintiff sought declaration that he is absolute owner of the suit property being in possession and enjoyment of the same and that the defendant has no right whatever in the site, nor he was in enjoyment of the same. (3) SA. 228.2007 The plaintiff sought permanent injunction restraining the defendant from unlawfully and forcibly entering upon the suit property and disturbing the plaintiff's possession and also from constructing the house by unlawfully obtaining a licence from the Municipality. The suit was decreed by the Court of first instance. The first appellate Court affirmed the same however, in the Second Appeal before the High Court it reversed the decree of both the Courts and dismissed the suit of the plaintiff with costs on the ground that the plaintiff has failed to establish satisfactorily his title to the suit property. The Apex Court found that neither the trial Court nor the first appellate Court carefully examined the title of the plaintiff. In upholding the title of the plaintiff they have primarily relied on the sale deed executed by Abdulla Saheb in his favour. The defendant in his written statement has pleaded that D.W.5 was the owner of the suit property and he has purchased the same from him in 1953. The question whether the defendant had a valid title to the suit property or not has not been examined either by the trial Court or the first appellate Court. The High Court has also not gone into that question. But the High Court has dismissed the plaintiff's suit on the sole ground that the plaintiff has not satisfactorily proved his title. The Apex Court observed "The High Court in our opinion, erred in coming to the conclusion that the possession of the plaintiff after (4) SA. 228.2007 the sale deed in his favour is not a relevant circumstance. We are of the opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property". 4] The plaintiff in the said case as could be seen had better title than the person asserting rights. No such eventuality surfaced in the present case. 5] Mr. Thigle also placed reliance to the judgment in the matter of Rame Gowda (dead) by LRs. Versus M. Varadappa Naidu (dead) by LRs. and anr. (2004) 1 SCC 769. It was a matter concerning section 6 of the Specific Relief Act. The occupant in the said case was claiming to be in settled possession, the Apex Court observed he cannot be dis-possessed without recourse to the law. The Apex Court has dealt with the term "Settled possession" in paragraph 9 which reads as under:- "The "settled Possession" must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase "settled possession" does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket." (5) SA. 228.2007 . The Apex Court has also referred about the legal position in India while referring to Salmond in Jurisprudence "Intention of the law is to protect every possessor and the person in possession is entitled to retain his possession unless deprived by the judgment of Court of law". As said earlier, the decree of the Court of first instance was absolute in it's nature indeed depriving the original owners of the property the State Government without impleading the Government and the first appellate Court rightly corrected the same. 6] The defendant no.2 did not participate in the proceedings however, by that itself will not entitle the plaintiff to claim injunction in respect of the property acceptedly encroached by them. The assertion that he is shown as occupant (HkksxoVknkj) by itself will not culminate to his settled possession over the suit property. The finding recorded by the first appellate Court setting aside the decree of injunction in Regular Civil Suit no. 146 of 1996 dated 19.7.2000, is depicting the correct legal position. There could not be injunction against defendant no.2 Abdul Khaled. None have title in the matter, except Government. The Second Appeal sans merit, dismissed. Sd/- (K.U. CHANDIWAL, J.) arp