IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.367 OF 2008 ALONGWITH CIVIL APPLICATION NO.979 OF 2008 Bhiva Govind Waikar @ Kadam )..Appellant Versus Sitaram Laxman Kadam & Ors. )..Respondents ---- Mr.R.A.Thorat & K.P.Mali for the appellant. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 5.6.2008. PC 1. This is a Second Appeal filed by the original plaintiff. The plaintiff had filed a suit for permanent injunction simplicitor. The suit was filed against defendant nos.1 & 2. Admittedly, defendant no.2 had half share in the suit land and by registered sale deed, he has sold his half share in favour of defendant no.1. Defendant no.1 claimed to be bonafide purchaser for consideration. Admittedly, the sale deed recites that what has been sold as half share. The sale deed did not specifically mention dimensions of the half share. The suit lands comprise of several lands and half share in respect of all the lands were sold by defendant no.2 to defendant no.1. On the basis of evidence adduced on record the trial Court decreed : 2 : the plaintiff’s suit. The appellate Court however, has allowed the appeal on an admission given by the plaintiff in his cross-examination. The admission is that when the grand-father of the plaintiff was alived, he had partitioned the land between the father of the plaintiff and defendant no.2 and given them separate possession. He admitted that in accordance with this arrangement a bandh was put up. He also admitted that after his father’s death, he was cultivating the share as allotted to the share of the father. On this footing, appeal Court has come to the conclusion that since the possession was separate, prayer for injunction simplicitor could not be granted. It may be stated here that this factual position though admitted in the cross-examination of the original plaintiff, was not pleaded in the plaint. The plaintiff therefore, did not place the correct fact. It appears that the plaintiff was in actual physical possession of only part of the suit land. In my view, there is no substantial questions of law involved. Appeal dismissed. CIVIL APPLICATION NO.979 OF 2008 . As the Second Appeal is dismissed, Civil Application does not survive and also stands rejected. : 3 : (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)