1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.593 OF 2006. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 15.03.2011. 1. Heard. 2. This is defendants' Second Appeal. 3. The plaintiffs had filed a suit for declaration and injunction against the Respondents in respect of the suit land S.No.200, admeasuring 3 hectares 36 ares. The trial Court partly decreed the suit. It clamped injunction against the Respondents excluding the portion of the Saw Mill. The plaintiffs preferred appeal. The appellate Court decreed the suit in toto. The defendants being aggrieved thereby has filed the present Second Appeal. 4. Mr.Bhavthankar, learned counsel for the 2 appellants submits that even the P.W.3 in his deposition had admitted that the portion of Saw Mill is in possession of the defendants. Even it has been shown that the defendants are tethering cattles and storing the goods in the said premises. The plaintiffs could not show their possession over the area of Saw Mill. Even the revenue record does not show that area of the Saw Mill is open piece of land. In view of these facts Mr.Bhavthankar, learned counsel contended that the lower appellate Court has committed an error in reversing the finding of the trial Court to that extent. 5. Per contra, Mrs.Chincholkar, learned counsel for the plaintiffs submits that it has been observed by the trial Court that the area of the Saw Mill is also fallow and the lower appellate Court was right in observing that in case of open piece of land, the owner is presumed to be the possessor of the said land. According to the learned counsel, no error has been committed by the Court below while decreeing the suit. 6. With the assistance of the learned 3 counsels, I have gone through the judgments. The legal position as it stands that a legal owner is presumed to be the possessor of an open piece of land is well settled. Even stray acts of trespass do not tantamount to settled possession. There are no overtacts on record to show that the defendants are in possession of the property or there is construction of any sort on the said premises. The Court below have taken into consideration this aspect and has allowed the appeal. No error is committed by the Court below while allowing the appeal. The defendants have nowhere challenged the title of the plaintiffs. 7. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.15.03.2011. asp/office/sa593.06 4