( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 295 OF 2008 Sk. Issaq s/o Sk. Bholu Choudhari APPELLANT VERSUS Sk. Harun s/o Sk. Mannu Choudhari RESPONDENT ..... Mr. Sachin Joshi, advocate holding for Smt. M.P. Joshi, advocate for the appellant. Mr. s.K. Shaikh, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th December, 2009] PER COURT : 1. Heard counsel. 2. The appellant is original defendant against whom suit for perpetual and mandatory injunction (R.C.S. No. 1/2002) was filed by the respondent. The trial Court framed certain issues. The appellant had filed counter claim in the suit. The trial Court dismissed the suit as well as the counter claim. Feeling aggrieved, the respondent preferred appeal, challenging the ( 2 ) dismissal of his suit by the trial Court. His appeal (R.C.A. No. 67/2007) was allowed by the learned District Judge, Aurangabad. The learned District Judge held that the respondent was entitled to relief of injunction. The mandatory injunction as sought by the respondent, however, was refused. 3. The dispute between the parties relates to an open space situated on eastern side of the house property bearing Municipal No. 131. Admittedly, house property bearing Municipal No. 131 is owned by the plaintiff/respondent. The parties have houses in the neighbourhood. The house bearing Municipal No. 131 of the plaintiff and house bearing Municipal No. 132 of the defendant are abutting the disputed open space. The contention of the plaintiff was that the open space in question is part and parcel of his house property. The learned District Judge held that the municipal record indicated entry of the plaintiff’s name which was recorded in 1999. It was also found that the defendant did not challenge the entry in the municipal record regarding ownership of the plaintiff. The trial Court ( 3 ) had dismissed the suit only because at one place, the plaintiff had blurted that his suit was for possession. Merely on basis of such stray admission, it was inferred that the plaintiff was not in possession of the disputed open space. The first Appellate Court, however, evaluated the entries in the municipal records and other evidence and came to the conclusion that open space in question is part of his house No. 131. It is important to note that the open space is adjacent to the house No. 131 and there was no question of khas possession thereof. It is well settled that possession follows title in case of open space. When the ownership rights of the plaintiffs were re-proved, there was no reason to dislodge his claim in respect of the perpetual injunction. The view taken by the first Appellate Court is quite reasonable. The appellant (defendant) did not prefer any cross-appeal against dismissal of his counter claim. The findings rendered by both the Courts below are the findings of facts based on material which was available so ass to determine the questions of facts. There was no question of law raised not it can be located from the nature of grounds stated in the appeal ( 4 ) memo. Hence, the second appeal falls outside the scope of section 100 of the Civil Procedure Code and as such, is dismissed. 4. In view of dismissal of the second appeal, civil application No. 4420/2008 does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/sa295-08