1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.356 OF 2009. Sayyed Mahmood S/o Sayyed Nizamuddin died His L.Rs. Saidabegam W/o Sayyed Mahmood and others ... Appellants. Versus Gulam S/o Abdul Qadaer Patel and others ... Respondents. ... Mr.K.K.Kulkarni, advocate for the appellants. Mr.A.T.Ghute, advocate holding for Mr.S.T.Ghute, advocate for the Respondent No.3-A. ... CORAM : V.R.KINGAONKAR,J. Date : 17.11.2009. PER COURT 1. Heard learned counsel for the appellants. 2. Mr.A.T.Ghute, learned advocate holding 2 for Mr.S.T.Ghute, advocate submits that due to some difficulties Mr.Ghute was unable to attend the Court and hence, he sought adjournment. The request for adjournment is rejected. 3. The appellants are original plaintiffs. They filed suit for perpetual injunction vide RCS No.210/1990 alleging that they are in lawful possession of the land bearing Block No.218/B admeasuring 4 hectares 32 Ares. They submitted that it is their ancestral land and the defendants unlawfully denied their title and started obstruction in their possession. According to the defendants, each of the three defendants purchased 3 gunthas out of the suit land from the plaintiff on 1.4.1970 vide three different sale deeds. Their names were entered in the Municipal record. They are in possession of house property bearing Municipal Nos.1215, 1216, 1217, which are standing in the strip of land of said three gunthas each and that the defendant No.2 has also sought permission to start a brickkiln in the portion of his land. According to them, the suit simpliciter for 3 injunction is filed in order to deprive them of the said 9 gunthas area purchased by them and which is in their actual possession. 4. Considering the material placed on record, the suit was decreed by the trial Court. The first appellate Court, however, came to the conclusion that the houses of the defendants are standing at the place and their names are duly incorporated in the Municipal Tax register. The learned District Judge further held that lawful possession in respect of the said disputed 9 gunthas area could not be proved by the plaintiffs. Consequently, the decree for perpetual injunction was modified and nine (9) gunthas strip was excluded from operation of the injunction. 5. On perusal of the judgments of the Courts below, it is quite clear that the defendant did not seek rectification of the sale- deeds. According to the plaintiffs, the area of 9 gunthas sold in favour of the Respondents is part and parcel of S.No.218/A and it is not part 4 of S.No.218/B. It is contended that without obtaining rectification, claim of the defendants should not have been accepted by the first appellate Court. It is further argued that the first appellate Court did not consider impact of Section 26 of the Specific Relief Act, 1963. I find it difficult to countenance the submissions of learned counsel Mr.Kulkarni for the appellants. In suit for injunction simpliciter, the only material issue is in respect of lawful character of actual possession of the plaintiff. The first appellate Court rendered findings of facts in relation to possession of the defendants over 9 gunthas (9 Ares) strip of the land. When it is found that rightly or wrongly they are in possession of 9 gunthas strip, the plaintiff can not claim relief of injunction. For, the plaintiffs' lawful possession in respect of the disputed 9 gunthas area was not proved. Assuming that there took place mistake while describing the said 9 gunthas area as part of S.No.218/B, yet, the question of title derived by the defendants can not be determined in the suit. It is clarified that such question of title is kept 5 open. Basically, the question of title is incidental in a suit for perpetual injunction and is useful only with a view to ascertain whether the actual possession of the plaintiffs is attributable to any lawful source. In the present case when the plaintiffs are not found in possession and when the Municipal house properties are recorded in the name of the defendants and are found to be in their possession, which are standing over the disputed strip of 9 gunthas, the plaintiffs can not be permitted to oust the defendants under the protective umbrella of perpetual injunction. In this view of the matter, no substantial question of law is involved in the Second Appeal and, therefore, it is dismissed. (V.R.KINGAONKAR,J.) asp/office/sa35609