1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL No. 829 OF 2009 Venkat Tukaram Rathod ... Appellant. Versus Haribhau Keshavrao Selukar & Others. ... Respondents. -------- Shri. A.M. Gaikwad, Advocate for the Appellant. Shri S.S. Kulkarni, Advocate for respondent No. 3. -------- CORAM: V.R.KINGAONKAR, J. DATE: 5th DECEMBER, 2009 PER COURT : 1) Heard. 2) The respondents are the original plaintiffs. They filed suit (RCS No.908/1987) for injunction simplictor. They submitted that the suit land is exclusively owned by them, and that though they are in actual possession, defendant (Appellant) was obstructing their possession. The 2 appellant alleged that he was tenant in possession since about 30-35 years. The Trial Court held that respondents (plaintiffs) proved their lawful possession over the suit land as on the date of the suit. The suit was therefore, decreed. The appeal preferred by the appellant before the First Appellate court (RCA No. 107/94), came to be dismissed. 3) Counsel for the appellant would submit that during the pendency of the suit, a part of the suit land was sold by original plaintiff Nos. 1 & 2 to the appellant (defendant). He would submit that co-sharer cannot be prohibited from entering the land, and therefore, injunction decree is unsustainable. It appears that the status of the appellant as co-sharer, is yet to be finally determined, because the litigation as between the defendant Nos. 1 & 2 on one hand and defendant No. 3 on the other hand, is yet pending. Moreover, remedy of purchaser of undivided share is sue for general partition and seek possession of the share purchased by him. 3 In other words, he cannot obstruct the lawful possession of the owner. In this view of the matter, I do not find any substantial question of law involved in the Second Appeal in as much as findings of the Trial Court and the first Appellate Court are based on assessment of material placed on record. The Apex Court is “Gurdev Kaur & others V/s. Kaki & others “ (AIR 2006 SUPREME COURT 1975). held that even if there is mistake in the appreciation of evidence or gross error committed by the Courts below, then also the jurisdiction is not available to entertain the Second Appeal Under Section 100 of the Civil Procedure Code, when the judgments are based on mere facts findings. 4) In this view of the matter, Second Appeal is dismissed, with no orders as to costs. (V.R. KINGAONKAR, J.) SDM/SA8829.09 4 5