1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.465 OF 2009 Sudam S/o Munjaji Munde .. APPELLANTS VERSUS Ramkrishna Hanumantrao Holambe & others ...RESPONDENTS ... Shri Vivek Bhavthankar, Advocate for the appellant Shri V.C. Patil, Advocate h/f U.S. Bondar, Advocate for respondent Nos. 1 to 9 CORAM : S.V. GANGAPURWALA, J. DATE : 29th November, 2010. PER COURT : This is defendants Second appeal. The present respondent Nos. 1 to 8 had filed suit for injunction against the present respondents on the ground that the suit plot was kept for common enjoyment of all the members and defendants are interfering in the sue and enjoyment of said plot. The Trial Court decreed the suit. The defendant No. 1 preferred an appeal, the appellate Court dismissed the appeal, confirming the Judgment and Decree passed by the Trial 2 Court. The defendant No. 1 has assailed the said Judgment in the Second Appeal. 2. Shri Bhavthankar, learned Counsel for the appellant submitted that admittedly the sale- deed of the whole property stands individually in the name of defendant No. 2, and thereafter, the defendant No. 2 has executed sale-deeds in favour of plaintiffs in his individual capacity and so, the suit plot is also owned by him. Present appellant has purchased the suit plot from defendant No. 2 for valuable consideration. In such circumstances, the appellant being the owner cannot be restrained from enjoying his own property. The same would amount to fetters on the right of an owner to enjoy the suit property. He further submitted that admittedly no society was formed as such it cannot be said that society owns the said plot and its members have right over the said plot. 3. Shri Patil, learned Counsel for the respondent contended that both the Courts on appreciation of the evidence on record have come 3 to a right conclusion. The property was purchased in the name of defendant No. 1 as it was proposed to form a society and he is the Chief Promoter of the proposed society, as the society was not formed he executed the sale-deeds in the name of its members and suit plot was kept for common enjoyment. As such, according to the learned Counsel there is no error committed by the Courts below. 4. With the assistance for the respective parties, I have gone through the Judgments delivered by both the Courts. 5. Apart from appreciating the oral evidence which go to prove that the suit plot was kept open for the enjoyment of all the plot holders therein. The other evidence is in the shape of legal proceedings, wherein the present defendant NO. 2 himself had filed a suit bearing Regular Civil Suit No. 136 of 1983, seeking inunction against the some of the plaintiffs herein. In the said suit, the Court had given a specific finding that the suit plot is kept for the common use and enjoyment of all the plot 4 owners therein. The said Judgment has become final. The same would also operate as res- judicata. The defendant No. 1 who is claiming though defendant No. 2 cannot get a better title then what defendant No. 1 posses. 6. In the light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA,J] SDM* 465.09/291110