1 SA 604.2008 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 604 OF 2008 Sheshrao S/o Shankar Tarte and another .... APPELLANTS V E R S U S The Commissioner, Municipal Corporation, Nanded. .... RESPONDENT Mr. S.V.Adwant, Advocate for the appellant. Mr. M.V.Deshpande, Advocate for Respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 04/02/2011 ORAL ORDER : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for simplicitor injunction against the defendants on the ground that they are the owners of the property. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The lower appellate Court partly allowed the Appeal to the extent that the defendant shall not dispossess the plaintiff without due process of law. The plaintiff being aggrieved by the limited injunction granted and the issue of ownership being decided against the plaintiff, has filed the present Second Appeal. 2 SA 604.2008 3. Mr. S.V. Advant, learned counsel for the appellant strenuously contends that the plaintiff had filed a simplicitor Suit for injunction, wherein an enquiry into the title is not warranted. The Courts have only to see the factum of possession. For the said purpose, the learned counsel relied on the Judgment of the Apex Court in the case of Rame Gauda ( Dead ) By L.Rs. V/s M. Varadappa Naidu (Dead) by L.Rs. and another reported in (2004) 1 Supreme Court Cases – 769. The learned counsel further contends that there is no clear finding as to the ownership of the defendants. Only the issue and point for determination has been framed by the Court but the same has not been specifically dealt with. The learned counsel further contends that the lower appellate Court has failed to adhere to the provisions of Order XLI Rule 31 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. The duty is cast on the lower appellate Court to specifically decide each and every point for determination. The learned counsel further contends that the defendant could not prove his ownership and in view of the provisions of Section 110 of the Indian Evidence Act, a person in possession is presumed to be owner and burden is upon the defendant to show that the plaintiff is not the owner of the property. 4. Per contra, Mr. M.V. Deshpande, learned counsel for respondent submits that the trial Court has specifically framed the issue about the ownership. The parties were put to notice about the controversy involved 3 SA 604.2008 in the Suit and even in a Suit for simplicitor injunction, enquiry into the title is not alien . The learned counsel further submits that both the Courts have discussed the evidence and have decided the issue of ownership. 5. With the assistance of the learned counsel for the parties, I have gone through the Judgments delivered by both the Courts. 6. The submission of the learned counsel for the appellant that in a Suit for simplicitor injunction, the issue of ownership could not have been gone into at all, can not be accepted. If both the parties do not have title, then in that case, the plaintiff in possession would be entitled for blanket injunction. But, even in a Suit for simplicitor injunction, if the defendant has a title, then in that case, the plaintiff can not be granted blanket injunction and for that purpose, enquiry into the title would be relevant. The Judgment of the Apex Court relied by Mr. S.V. Advant, learned counsel for the appellant in the case of Rame Gauda referred supra, also states that A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. This also shows that the question of title would not be totally alien in a Suit for simplicitor injunction. 4 SA 604.2008 7. The Courts below have discussed the documents on record, so also the evidence and have concurrently come to the conclusion that the defendant has proved the ownership and that Chintaman i.e. husband of the predecessor in title of the plaintiff was only the tenant. The rent receipts are also produced on record. No error has been committed by both the Courts in appreciating the evidence. Regarding non adherence to the provisions of Order XLI Rule 31 of the Code is concerned, the said objection is not sustainable in view of the fact that the District Court while delivering the Judgment has considered all the evidence and has given the findings. 8. In light of the above, the view taken by the Courts below being a possible view can not be interfered in the Second Appeal. The Second Appeal being sans substantial question of law, is dismissed, however with no order as to costs. 9. In view of dismissal of the Second Appeal, the Civil Application does not survive and is disposed off. [S.V. GANGAPURWALA, J.] knp/SA 604.2008