1 SA 786.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 786 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.B.R.Kedar, Advocate holding for Mr.S.B.Talekar,Advocate for the appellant. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 28/03/2011 PER COURT : 1. This is plaintiff’s Second Appeal. 2. The plaintiff had filed Suit for simplicitor injunction restraining the defendants from interfering in his possession. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellant Court also dismissed the Appeal confirming the Judgment and decree passed by the trial Court. The plaintiff being aggrieved by the said Judgment and decree, has assailed the same in the present Second Appeal. 3. Mr. B.R.Kedar, the learned counsel for the 2 SA 786.2010 appellant strenuously contends that the Courts below have given perverse finding so far as the Suit bearing R.C.S. No. 382 of 2006 is concerned. Actually the said Suit was not filed by Subhash, but it was observed that the plaintiff Subhash has filed the said Suit. The learned counsel submits that the Courts have not taken into consideration the lease deed executed by Subhash in favour of the Trust, which was pursuant to the consent deed executed by the heirs. The said trust was created with the pious thought. The trust in the name of father is created and for the said purpose, the possession was given to the Trust. Though the nomenclature of the plaintiff is styled as Subhash, in fact, the Suit was filed on behalf of the Trust. The learned counsel further contends that even the name of the Trust was mutated in the revenue record, but this aspect has not been considered. The learned counsel submits that even the Courts have declared lease as illegal without any relief of declaration to that effect. 4. With the assistance of the learned counsel, I have gone through the Judgments. 5. In a Suit for simplicitor injunction, the paramount consideration is the factum of possession. In a Suit for injunction, the issue 3 SA 786.2010 about lease was collateral. The Courts below on evaluating and assessing the evidence, have categorically come to the conclusion that the plaintiff could not prove its possession. Even the plaintiff in his deposition has admitted that decree for partition has been passed in a Suit for partition and separate possession. Even the property is mortgaged with the Bank. In a Suit for partition and separate possession, 13 shares were carved out and the present suit property was also part of the suit property in a suit for partition. It has been observed that the revenue record does not disclose the name of the Trust in the cultivation column. All these aspects have been considered by the Court below and have dismissed the Suit for injunction finding that the plaintiff could not establish his possession. 6. In light of the above, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 7. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 786.2010 4 SA 786.2010