1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 256 OF 2008 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.S.A. & B.A. Dhengle,Advocate for the appellant Mr. D.R.Jaybhar, Advocate for Resp.Nos. 2-A,2-B, 2-C/1 to 2-C/3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 14/03/2011 PER COURT : 1. Heard. 2. This is plaintiff’s Second Appeal. The plaintiff had filed Suit for declaration and injunction. The trial Court decreed the Suit holding that the plaintiff is the owner and lawful possessor of the suit land, so also, injected respondent nos. 1 and 2 from obstructing and interfering in the lawful possession of the plaintiff. The defendants preferred Appeal. The appellate Court confirmed the decree so far as injunction was concerned, but did not grant relief of declaration of ownership to the plaintiff on the 2 ground that though the plaintiff was karta of the family, his brothers also were the co-owners and so the plaintiff could not be held to be the absolute owner of the suit property. The plaintiff has assailed the said Judgment and decree in the present Second Appeal. 3. Mr. Dhengle, the learned counsel for the appellant submits that the defendants could not have denied the claim of the plaintiff about the exclusive possession. The fact that the plaintiff had the brother, who also is the co-owner, would not have mattered, for grant of relief of declaration as that was an interse issue between the plaintiff and his brother. As such, there was no impediment for the lower appellate Court to grant relief of declaration also. In alternate, the learned counsel submits that the Court could have granted the relief of declaration to the appellant to the extent of his share. 4. Per contra, Mr. D.R. Jaybhar, the learned counsel for the respondents supports the Judgment passed by the lower appellate Court. 5. With the assistance of the learned counsel, I have gone through the Judgments. 3 6. The appellate Court in para no. 29 of its Judgment has observed that after the death of father of the plaintiff, the plaintiff along with his brother became the owner of the property. The lower appellate Court confirmed the fact that the plaintiff along with his brother is the owner of the property as the same is ancestral one. As the plaintiff could not point out that there was any partition and in partition entire suit property was allotted to him, has negatived the relief of declaration. The plaintiff has himself contended that he being elder, is the karta of the family. 7. In that light of the matter, the lower appellate Court has negatived the declaration about ownership. It does not mean that right of the plaintiff in the suit property has been negatived. 8. In light of the above, no error is committed by the Court below while passing the impugned order. The Second Appeal being devoid of substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 256.2008 4