1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 459/2007 (Poonamdas Bisendas Biaragi Vs. Pandit Sampat Wagh & 6 ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. S.R. Deshpande, Adv. for appellant. CORAM : Smt. Vasanti A. Naik, J. DATED : 14 th September, 2007. Heard Shri Deshpande for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff on a plea that the suit land and the suit house was the property belonging to the Balasaheb Balaji Sansthan Rohikhed and the same was delivered in possession of the plaintiff in the year 1972. It was the case of the plaintiff that it was agreed between the parties that the plaintiff would engage himself in the worship by acting as a Priest in the temple of the said Trust and in consideration thereof, the plaintiff was handed over the suit land for cultivation and for his own benefit. The suit house was also given in possession of the plaintiff for his residence. According to the plaintiff, the defendants were trying to forcibly dispossess him from the suit house and the suit land, and, therefore, the plaintiff filed the suit for permanent 2 injunction restraining the defendants from illegally dispossessing the plaintiff from the suit properties. The defendants filed their written statement and admitted their ownership over the suit land. It was denied that the plaintiff was the owner of the suit house and was in continuous possession of the suit house and suit land since the year 1972. It was further denied that the plaintiff was in possession of the suit land at the time of institution of the suit. They, therefore, sought for the dismissal of the suit. The trial Court, on an appreciation of the evidence tendered by the parties on record, however, held that the suit property was delivered to the plaintiff, but the plaintiff had failed to establish that the plaintiff was possessing the same since the year 1972. The Court held that the plaintiff had failed to prove his ownership over the suit house by adverse possession. The Court, however, granted a relief of perpetual injunction in favour of the plaintiff restraining the defendants from dispossessing the plaintiff without following the due process of law. The findings recorded by the trial Court in respect of the suit house and the injunction granted against the defendants in respect thereof, was maintained by the first appellate Court. However, the first appellate Court modified the decree passed by the trial Court by holding that the 3 plaintiff was not entitled to permanent injunction in respect of the landed property i.e. the suit land. The first appellate Court, on a re-appreciation of the material evidence on record, held that the plaintiff had failed to prove his possession over the suit land, though he had succeeded in proving his possession over the suit house. The appellate Court, therefore, partly allowed the appeal filed by the defendants and restrained the defendants from disturbing the possession of the plaintiff over the suit house, without following the due process of law. I have perused the judgments delivered by the trial as well as the appellate Courts. The appellate Court, being a final fact finding Court, appreciated the material evidence which was tendered by both the parties, to record a finding that the plaintiff had failed to prove his possession over the suit land. The modification of the judgment and decree passed by the trial Court was just and proper in the facts and circumstances of the case. The first appellate Court, for cogent reasons recorded in paragraph no. 14 of the judgment, held that the plaintiff had failed to prove his possession over the suit land. No fault can be found with the reasons recorded by the first appellate Court while reversing the aforesaid findings. The findings recorded by the first appellate Court do not give rise to any substantial question of 4 law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP