Judgment : 1. The above Second Appeal arises out of the judgment and order dated 20/10/2008 passed by the learned District JudgeI. Nashik by which the Appeal filed by the original Defendant No.1 came to be partly allowed, and the decree of the Trial Court decreeing the suit in question by issuing the declaration, mandatory injunction, mesne profit came to be set aside, and was restricted to only restraining the Defendants from interfering with the possession of the original Plaintiffs in respect of the land bearing CTS No.180/1 shown in map Exhibit 61 including rectangular portion of land CTS No.180/1 in which the well is situated. 2. The parties trace their lineage from common ancestor one Gopalrao Gangaram Pasalkar. The original Plaintiffs and the Defendants are heirs of the daughters in law Anusayabai and Saraswatibai of the said Gopalrao Pasalkar. The original Defendant No.2 Malatibai is the daughter in law of the said Gopalrao Pasalkar, who has expired during the pendency of the proceedings. The property which is the subject matter of the dispute is the self acquired property of the said Gopalrao. By execution of the Will in respect of the property bearing City Survey No.180 bearing House No.90 and House No.91 admeasuring 76 sq.yards approximately 636.11 sq.mtr, the said Gopalrao had divided and partitioned the same equally between the three daughters in law i.e. deceased Anusayabai, Saraswatibai and Maltibai. It seems that the portion given to the Defendant No.2 Maltibai is first in line to the western side of which is the portion given to Saraswatibai and 1/3rd portion to the western side of Saraswati’s property is the 1/3rd portion of Anusayabai. The property described in Clause 30C of the City Survey No.180 i.e. western share along with the well situated therein and admeasuring 50 ft East-West x 27 ft. North-South i.e. the open space which had fallen to the share of the Plaintiff No.1's wife Anusayabai. The revenue entries were accordingly made in the property register in the name of Anusayabai and after the death of Anusayabai, the property devolved upon the Plaintiffs, and their names came to be recorded in the record of rights. It seems that the Defendants started having disputes with the Plaintiffs and it is alleged that they had encroached upon the share of the Plaintiffs from the western side to the extent of 3 ½ ft. It seems that the Defendants started having disputes with the Plaintiffs and it is alleged that they had encroached upon the share of the Plaintiffs from the western side to the extent of 3 ½ ft. This resulted in Plaintiffs filing suit bearing Regular Civil Suit No.87 of 1992 for restoration of the portion of their property which the Defendants had encroached. It was the case of the Plaintiffs that the open space admeasuring 50 x 27 ft was in their possession along with the well situated therein. In the said suit a Court Commissioner by way of City Survey Officer was appointed. The property continued to be in possession of the Plaintiffs and they were using it. The matter was precipitated by the Defendants on 26/9/2000 when it was alleged that the Defendant No.1 brought stones and building material and stacked it in the open space thereby prohibiting the Plaintiffs from accessing their land, as it was the case of the Plaintiffs that the Defendant No.1 had encroached upon the portion of their open space admeasuring 50 x 27 ft.. The cause of action for filing the present suit had arising on 26/9/2000 when the Defendants had restrained the Plaintiffs from going to the well situated in the open space admeasuring 50 x 27 ft. The Plaintiffs therefore sought a declaration in the suit in question that the open space along with the well situated in Survey No.180 ;House No.90 be declared as owned by the Plaintiffs. The Plaintiffs also prayed for removal of encroachment by removing the stones stacked in the open space covering 50x27 ft and hand it over to the Plaintiffs. They also prayed for damages on account of the acts of the Defendants. 3. On behalf of the Defendants, the Defendant No.1 filed her written statement. The execution of the Will by the said Gopalrao is admitted by the Defendant No.1. However, it was denied by the Defendant No.1 that 1/3rd share of the western side admeasuring 50 x27 ft. was given to the said Anusayabai along with the open space and the well situated therein as contended by the Plaintiffs. It was contended by the Defendant No.1 that it was clearly mentioned in the Will that Anusayabai would get 1/3rd portion of the property abutting to the road along with the well. was given to the said Anusayabai along with the open space and the well situated therein as contended by the Plaintiffs. It was contended by the Defendant No.1 that it was clearly mentioned in the Will that Anusayabai would get 1/3rd portion of the property abutting to the road along with the well. It was the case of the Defendant No.1 that the Plaintiffs have unnecessary raised a dispute by wrongly describing the property showing the size of the open space as 50 ft East-West and 27 ft. NorthSouth by wrongly interpreting the recitals in the Will. It was denied by the Defendant No.1 that the size of the well was 50 x 27 ft. However, it was accepted by the Defendant No.1 that the Plaintiffs are the legal representatives and are entitled to succeed to the estate of the said Anusayabai. The fact of the property being sought to be encroached by the Defendant No.1 was denied. It was contended by the Defendant No.1 that City Survey Officer had carried out the measurement and had determined the shares of the parties to the suit showing each one of them was entitled to 1/3rd share in the total property which belonged to Gopalrao Pasalkar. It is accepted by the Defendant No.1 that the portion of the property which had gone to the share of the Plaintiffs is City Survey Nos.180/1, and that City Survey No.180/2 came to the share of the Defendant No.1, and City Survey No.180/3 had gone to the share of the Defendant No.2, and that the maps are drawn and the entries are made in the property register. 4. The Defendant No.2 also filed her written statement. She denied that the Defendant No.1 had brought stones on the open space and had restrained the Plaintiffs from going to the well by bringing the stones at the site causing encroachment to the extent of 50x27 sq.ft. of the open space in which the well is situated. According to the Defendant No.2 there was no cause of action for filing the present suit. 5. The parties went to trial. In the context of the present Second Appeal, the relevant issues are the issues pertaining to whether the Plaintiffs proved the title and possession; and whether the Defendants have encroached upon the property of the Plaintiffs. 6. According to the Defendant No.2 there was no cause of action for filing the present suit. 5. The parties went to trial. In the context of the present Second Appeal, the relevant issues are the issues pertaining to whether the Plaintiffs proved the title and possession; and whether the Defendants have encroached upon the property of the Plaintiffs. 6. In assertion of their respective cases, the parties led evidence i.e. both oral and documentary. The Trial Court on the basis of the material on record came to a conclusion that the Plaintiffs have proved their title and possession over the suit property. The Trial Court also recorded a finding that the Defendants had brought the stones and stacked them towards the western side of the House No.90 and prevented egress and ingress of the Plaintiffs in 50 x 27 ft area and made encroachment to the extent of that portion. The Trial Court held that the suit was not barred by principles of resjudicata in view of the earlier suit filed by the Plaintiffs. The Trial Court, therefore, decreed the suit in so far as declaration is concerned, and directed the Defendants to remove the encroachment over the suit property and hand the possession to the Plaintiffs, the Defendant Nos. 1 and 2 were also restrained from obstructing the possession of the Plaintiffs over the suit property. 7. The Defendant No.1 aggrieved by decreeing of the suit as above, filed an Appeal being Regular Civil Appeal No.84 of 2006. As indicated above, the Lower Appellate Court, has partly allowed the said Appeal. The Lower Appellate Court set aside the decree of declaration in respect of the Plaintiffs title in respect of their 1/3rd share identified by the City Survey No.180/1, however, granted decree of injunction restraining the Defendants from interfering into the Plaintiffs possession in respect of the suit property identified by City Survey No.180/1 including the rectangular portion of land in CTS No.180/1 in which the well is situated. Since the encroachment by way of stacking of stones had been removed after the decree was passed by the Trial Court, the relief of mandatory injunction directing the Defendants to remove the said encroachment did not survive, and therefore, the Lower Appellate Court dismissed the suit in so far as the said relief is concerned. Since the encroachment by way of stacking of stones had been removed after the decree was passed by the Trial Court, the relief of mandatory injunction directing the Defendants to remove the said encroachment did not survive, and therefore, the Lower Appellate Court dismissed the suit in so far as the said relief is concerned. The Lower Appellate Court, therefore by the judgment and order dated 20/10/2008 , as indicated above, partly allowed the Appeal. 8. In so far as the decree of declaration of title issued by the Trial Court is concerned, the Lower Appellate Court dismissed the suit of the Plaintiffs and set aside the decree on the ground that there was no proper description of the property in so far as the rectangular portion surrounding the well is concerned. 9. The substantial questions of law which arise for consideration in the above Second Appeal are : (a) Whether the Appellate Court erred in dismissing the suit for declaration of ownership when admittedly the Defendants had accepted the 1/3rd share of Anusayabai by virtue of one Will of late Gopalrao Pasalkar? (b) Whether the Appellate Court erred in dismissing the suit for declaration of ownership in view of grant of decree for perpetual injunction of the similar portion? 10. In the light of narrow controversy which is involved, the above Appeal is taken up for final hearing with the consent of the learned counsel for the parties. 11. In so far as the Appellants are concerned, the learned counsel Shri A M Kulkarni would contend that the Lower Appellate Court had erred in setting aside the decree of declaration of title which was in favour of the Plaintiffs on the ground that there was no proper description of the rectangular portion surrounding the well. The learned counsel would contend that once the Defendants had accepted that the said Anusayabai was entitled to 1/3rd share as per the Will of Gopalrao Pasalkar and the said 1/3rd share which had come to each of the daughters in law has been divided by the City Survey Officer by map Exhibit 61 i.e. CTS Nos. 180/1, 180/2 and 180/3, the decree of declaration of title ought to have been sustained. The learned counsel would contend that the Lower Appellate Court had erred in upsetting the decree of declaration of title. 12. 180/1, 180/2 and 180/3, the decree of declaration of title ought to have been sustained. The learned counsel would contend that the Lower Appellate Court had erred in upsetting the decree of declaration of title. 12. Per contra, it is submitted by the learned counsel appearing for the Respondent Nos. 1 to 4 Shri Deshmukh that the decree of declaration of title has been upset by the Lower Appellate Court in view of the fact that there was no description of the said disputed portion of 50 x 27 ft. The learned counsel would contend that though the Defendants do not dispute that Anusayabai was entitled to 1/3rd share as also do not dispute the fact that the CTS No.180/1 is of the Plaintiffs which comprises 1/3rd share which has come to them from Gopalrao Pasalkar, it is in view of the fact that there is no proper description of the property which is the subject of the suit that the Lower Appellate Court has set aside the decree in so far as declaration of title is concerned. 13. Having heard the learned counsel for the parties, I have bestowed by anxious consideration to the rival contentions. In so far as the present Second Appeal is concerned, it is required to be noted that the Defendants in their written statement have accepted the position that 1/3rd share in the property of Gopalrao Pasalkar was that of the Plaintiffs as the heirs of Anusayabai. The Defendants also accepted the position that CTS No.180/1 comprises the said 1/3rd share as originally the land owned by Gopalrao Pasalkar bore CTS No.180 was divided into three parts as per the Will of the said Gopalrao Pasalkar and the said three parts were given number as CTS Nos.180/1, 180/2 and 180/3. The Defendants also accepted the position that the well in question is situated within CTS No.180/1. It is also required to be noted that the Trial Court had issued declaration considering the aforesaid position. However, the Lower Appellate Court as can be seen decreed the suit in so far as the injunction is concerned and which decree the Lower Appellate Court had made applicable pertinently to the said 1/3rd portion which is CTS No.180/1 including the portion admeasuring 50 x 27 ft in which the well is situated and the surrounding area. However, the Lower Appellate Court as can be seen decreed the suit in so far as the injunction is concerned and which decree the Lower Appellate Court had made applicable pertinently to the said 1/3rd portion which is CTS No.180/1 including the portion admeasuring 50 x 27 ft in which the well is situated and the surrounding area. However, the Lower Appellate Court, in my view, has misdirected itself by setting aside the decree of declaration of title, if the Lower Appellate Court had found the Plaintiffs entitled to the decree of injunction in their favour on the basis that the they were entitled to 1/3rd share, the said share comprises of CTS No.180/1 in which the well is situated, then there was no reason for the Lower Appellate Court to deny the declaration of title to the Plaintiffs. 14. In the light of the aforesaid the finding of the Lower Appellate Court that the Plaintiffs have not given proper description of the said area i.e. 50 x 27 ft. also cannot be accepted. Though the learned counsel for the Appellants i.e. the original Plaintiffs sought to buttress his submission that the finding of the Lower Appellate Court that there was no proper description of the property was erroneous for which he sought to advert to the description in the plaint, in my view, it is not necessary to see the description in the plaint as the Lower Appellate Court itself had found it fit to grant the decree of injunction which could only be against an identified portion. It is required to be noted that the Defendants have not filed a Second Appeal challenging the decree of injunction which has been passed by the Lower Appellate Court. In my view, therefore, the decree of the Lower Appellate Court in so far as it sets aside the decree of declaration of title passed by the Trial Court is required to be set aside and in turn the Appeal is required to be allowed in so far as the relief of declaration of title of the Plaintiffs in respect of the land bearing CTS No.180/1 is concerned, therefore apart from the decree of injunction, the Plaintiffs are also entitled to the decree of declaration. 15. The questions of law are accordingly answered. 15. The questions of law are accordingly answered. The decree of the Lower Appellate Court is modified to the extent that the Plaintiffs are entitled to the declaration of title in respect of the land bearing CTS No.180/1 including the rectangular portion of CTS No.180/1 in which the well is situated. 16. The suit in question is also decreed in respect of the declaration of title to the land bearing CTS No.180/1 shown in the map Exhibit 61 including the rectangular portion of land CTS No.180/1 in which the well is situated. The Plaintiffs are accordingly declared as owners thereof. The Defendants Nos.1/2 to 1/5 i.e the legal representatives of Saraswatibai Pasalkar i.e. Prakash Jagannath Pasalkar, Manoj Jagannath Pasalkar, Anant Jagannath Pasalkar Smt. Vanmala D/o Jagannath Pasalkar are restrained from interfering into the Plaintiffs possession i.e. the possession of the present Appellants over the land CTS No.180/1 shown in map Exhibit 61 including rectangular portion of land CTS No.180/1 in which the well is situated The above Second Appeal is accordingly allowed. Decree be drawn up accordingly. 17. In view of the above Second Appeal being allowed, the Civil Application No.233 of 2009 which is for injunction does not survive and the same to accordingly stand disposed of as such.