1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL STAMP NO. 9302 OF 2001 (REJECTED CASE NO. 164 OF 2004) Tulshiram S/o Kishanrao Jawakar, .. .. Applicant Versus 1. Shivaji S/o Ganeshrao Kadam and others .. .. Respondents Shri P. R. Katneshwarkar, Advocate for the Appellant. CORAM : N. D. DESHPANDE, J. DATE : 15TH DECEMBER, 2009. ORAL ORDER : 1. Heard Shri Katneshwarkar, learned counsel for the appellant. The second appeal is for admission. The appellant is original plaintiff who filed suit for perpetual injunction mainly against defendant No. 1 who is respondent No. 1 and allegedly purchased some portion of the land gat No. 165 a part of the share which was given to the plaintiff's brother defendant No. 4. The defendant No. 2 and 3 are the close relations of defendant No. 1 and they are backing the defendant No. 1. The defendants No. 1 to 3 have filed common written statement praying for dismissal of the suit. 2 2. The suit is for perpetual injunction simplicitor. No doubt such suits are maintainable for protection of the possession and nothing more. Needless to state that they are not substantive suits. It is doubted, whether such suits in second appeal could be maintained for substantial question of law, after dismissal of the suit both by the Trial Court and the First Appellate Court. The dispute is narrow, though appears to be continuous. The plaintiff is having joint cultivation in respect of one of the portions of gat No. 165 he received in partition of the joint family of plaintiff himself and the defendant No. 4 and their brother Neminath, who is not party in the proceeding. It is stated that, these three brothers partitioned their ancestral property which is gat No. 165 and house property as per partition deed dated 18th July, 1989, Exhibit 14 which is unregistered document. According to the plaintiff/appellant same is considered by both the Courts below for ascertaining his possession, where the defendants No. 1 to 3 are disturbing him with an ulterior motive. 3. It appears that, the dispute aroused in the year 1992 after the sale deed dated 28.12.1992 which was executed by the plaintiff's brother defendant No. 4 in favour of defendant No. 1 in respect of his some portion of the land of gat No. 165 to the Eastern side of the plaintiff's share of the allotment. The suit came to be filed in the month of March 1994. There is also mention about two wells of the joint family prior to the partition and plaintiff claims to be exclusive owner of one of the wells which is in his possession and he also pleaded that another well is common for all three brothers. The defendant No. 1 is a purchaser of a portion from one of the brother i. 3 e. defendant No. 4 and probably the dispute might be about the use of well for cultivation, which plaintiff/appellant is claiming as his own to the exclusion of other brothers and their successor-in-title. 4. Shri Katneshwarkar, learned counsel for the appellant read out the plaint copy from his office file and also the judgment of the Trial Court and the First Appellate Court as well. Perused the copy of partition deed. Though, the suit is about six parts of the gat No. 165 as allotment comprising three shares of the three brothers by distinct boundaries, is silent on the material point of area of such distribution to identify distinctly three respective shares and the portions. It is material fact that one of the portion of defendant No. 4 came to be transfered in favour of defendant No. 1 in the month of December 1992. The said sale deed is nowhere challenged or disputed for any purpose. According to the plaintiff/appellant defendant No. 1 on the basis of said sale deed is now encroaching and interfering in possession of plaintiff's portion, where there is a well and has a apprehension that he would lay hands on that portion under the garb of said sale deed. 5. It is true that nobody can claim what is not belonging to him or transfered to him is the Rule of law. As such, the defendant No. 1 as a transferee cannot claim what is not being sold to him by defendant No. 4 transferrer or more than that what defendant No. 4 possessed in law. Parties are no doubt under obligation to confine themselves to their cultivation and possession in respect of the of their area only after distinctly made out if not, they should go for it with the consultation and confirmation from the revenue authorities 4 on the basis of alleged partition in the family. Unless it is done, no court could help the parties in distress. The Trial Court and First Appellate Court are the final Courts of facts and they must have also found difficulty to understand the dispute for extending it to the plaintiff in the matter of perpetual injunction. Naturally the difficulty here also int he second appeal where normally no interference is called for in the findings, when it is recorded after appreciating the material placed before the Courts below. As observed above, the perpetual injunction suit is not a substantive suit, therefore findings cannot be res-judicata. There are only remedies for limited purpose viz for protection of possession on proof of previous possession or settled possession. 6. In that view of the matter, the appellant failed to make out prima facie case. He also failed to make out such case in second appeal for admission. The second appeal, there stands dismissed summarily, at the admission stage with liberty as above. [ N. D. DESHPANDE, J.] bsb/Dec. 09