1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 348/2008 (Chandrabhan Mangat Borkar Vs. Maroti Mangal Borkar & 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. CORAM : Smt. Vasanti A. Naik, J. DATED : 10 th SEPTEMBER, 2008. Heard Shri Dhobe for the appellant, and Shri Abhay Sambre for the respondent no.1. The appellant is the original defendant no.1. A suit was filed by the plaintiff/present respondent no.1 for perpetual injunction restraining the defendants from disturbing the peaceful possession of the plaintiff over the suit property. In the alternative, the plaintiff also sought a decree for partition and separate possession of plaintiff's share in the suit property. It was pleaded by the plaintiff that after the decision was passed by the tenancy authority in certain proceedings, the members of the family divided the suit property and started separate cultivation of the portions which came in their separate possession. According to the plaintiff, behind the back of the plaintiff, the defendant no.2 applied before the Tahsildar for determining the purchase price of the suit property and the Tahsildar allowed 2 the application behind the back of the plaintiff. After the mutation entry was recorded, the plaintiff became aware of the order and made necessary applications before the Tahsildar and the other authorities. It was pleaded by the plaintiff that the plaintiffs and the defendant nos.1 to 3 were the real brothers and were jointly cultivating the suit fields as tenants and members of Hindu joint family. Since the defendants were disturbing the possession of the plaintiff, the suit for permanent injunction was filed. The defendant nos. 1 and 3 filed written statement and admitted the claim of the plaintiff. The defendant nos. 1 and 3 admitted the possession of the plaintiff over the portion of the field Survey No. 17. They also admitted that the defendants and the plaintiff were cultivating their shares and pleaded that there was no necessity to further partition the suit property. The defendant no.2 denied the claim of the plaintiff and also denied the possession of the plaintiff over the suit property. He pleaded that old Survey No. 17 was in his possession and the plaintiff had no concern with it. He also pleaded that in the year 1998-1999, he cultivated the entire field Survey No. 17 as a deemed owner. The defendant no.2, therefore, sought for the dismissal of the suit. The trial Court held that the plaintiff had succeeded in proving that there was a division of the 3 suit land in a family arrangement and the plaintiff and the defendants were cultivating the suit land separately. The trial Court held that the plaintiff failed to prove that the defendant no.2 purchased the suit land in his name on behalf of the members of the joint family. The trial Court then held that the plaintiff was in possession of the suit property and the defendant no.2 was trying to disturb the peaceful possession of the plaintiff. Hence, the trial Court granted the relief of permanent injunction while dismissing the suit for partition and separate possession. In an appeal filed by the defendant no.2, the finding recorded by the trial Court, in regard to the possession of the plaintiff, was maintained. The first appellate Court held that the trial Court has rightly exercised its discretion in granting the relief of perpetual injunction as the plaintiff was found to be in possession of the suit property. The judgments of both the Courts are challenged in the instant appeal. I have heard the learned counsel for the parties and also perused both the judgments. The trial Court restrained the defendant no.2 from interfering with the possession of the plaintiff without following due procedure of law. The first appellate Court also recorded a finding of fact that the plaintiff was in possession of the suit property and was entitled to permanent injunction as prayed by him. In any case, the first appellate Court has not decided the question 4 of title of the parties as a declaration of ownership was not sought in the matter and had merely granted a permanent injunction restraining the defendant no.2 from interfering with the peaceful possession of the plaintiff, without following due procedure of law. Since the plaintiff was found in possession of the suit property and since both the Court had held that the defendant no.2 was trying to interfere with the peaceful possession of the plaintiff without following due process of law, the Courts rightly granted perpetual injunction in favour of the plaintiff. The findings recorded by both the Courts are pure findings of facts which are based on a proper appreciation of the material evidence on record. They do not give rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP