1 sa 555.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 555 OF 2010 Shivaji S/o Ramchandra Kolse .. Appellant Versus 1. Govind Dagadu Bhokare and others .. Respondents Shri G. K. Kshirsagar, Advocate for the Appellant. Shri Deelip Patil (Bankar), Advocate h/f Shri Pradeep Salunke, Advocate for the Respondent No. 2. The Respondent Nos. 1, 3 and 4 served. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. PER COURT : . This is an appeal by original plaintiff, who has filed a suit for mandatory injunction. The Trial Court decreed the suit. The defendants preferred an appeal. The Appellate Court partly allowed the appeal to the extent that the defendants are restrained from making any type of construction in the suit property. The relief to the extent of mandatory injunction was refused. Aggrieved thereby the plaintiff has preferred present second appeal. 2 sa 555.10 2. Shir Kshirsagar, the learned counsel submitted that there is ample evidence on record to show that the said construction was during the pendency of the proceedings. The Trial Court has discussed the evidence in that regard and had granted the relief of mandatory injunction, also the Trial Court has considered the photographs, the Commissioner's report and the fact that the 7/12 extract do not contain a single entry about the existence of said Chappar, which clearly shows that the construction is new one. But the lower Appellate Court has on inference denied the said relief to the plaintiff. 3. Shri Patil, the learned counsel for the respondent No. 2 supports the order passed by the Courts below and submits that the plaintiff could not prove that the construction was during the pendency of the proceedings. 4. With the assistance of learned counsel I have gone through the judgments. The lower appellate Court discussed that the Commissioner report would not be enough to come to the conclusion about the age of the said construction. No doubt, there is no entry in the revenue record about the said construction. But then that fact ipso facto would not convey that 3 sa 555.10 the construction was new one. 5. Even otherwise, it has been observed by the District Court that the plaintiff is entitled for the possession of entire property as per the order passed by the Tahsildar in Watan Case No. 47 and plaintiff can take possession of the entire suit property with the construction on it. In view of that already the plaintiff is armed with an order of Tahsildar for possession of entire suit property. So also taking into consideration the fact that the date of construction of such Chhaper is not coming forward, nor it can be ascertained, the appellant is rightly denied the relief of mandatory injunction. In the light of above, the view taken by the Court below is plausible and possible view. The second appeal does not involve any substantial question of law is dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/Mayl 11