JUDGMENT The appellant has filed the second appeal being aggrieved by the judgment and decree passed by the learned 6th Additional District Judge, Thane in Civil Appeal No. 193 of 1999 on 10.2.2004. This second appeal was admitted on 16.08.2012 and following is the substantial question of law framed at the time of admission of the second appeal. "Whether the Lower Appellate Court erred in rejecting appellant's prayer for directing the respondent for restoration of the possession of the suit flat" 2. Few facts necessary for the disposal of this second appeal are as under:- The respondent herein filed Regular Civil Suit No. 395 of 1994 in the Court of Civil Judge, Senior Division, Thane in regard to the premises more particularly set out in the plaint being Block No. 2 admeasuring 610 sq. feet. According to the respondent, the respondent had agreed to sell the suit premises to the appellant on 13.7.1993 for a total consideration of Rs. 1,50,000/-. It was also the case of the respondent that the possession of the suit premises was handed over to the appellant and thereafter in the month of August 1994 the appellant surrendered the possession to the respondent. It is also the case of the appellant that the Deed of Cancellation of agreement dated 13.7.1993 was executed on 18.5.1994 and the sum of Rs. 10,000/- was returned to the appellant. According to the respondent, in the month of September 1994 the appellant attempted to dispossess the respondent from the suit premises and that is how the respondent had to file the suit so as to seek an order of injunction restraining the appellant from interfering with the possession of the respondent in regard to the suit premises. The learned Civil Judge Senior Division, Thane by judgment and decree dated 17.9.1999 decreed the suit. The appellant challenged the said judgment and decree by filing Civil Appeal No. 193 of 1999 in the District Court at Thane, being aggrieved by the judgment and decree passed by the learned Civil Judge Senior Division at Thane on 17.9.1999. The said appeal was allowed by the learned District Judge by judgment and order dated 10.2.2004 and the suit filed by the respondent was dismissed, that is to say the injunction issued against the appellant was dissolved. 3. The said appeal was allowed by the learned District Judge by judgment and order dated 10.2.2004 and the suit filed by the respondent was dismissed, that is to say the injunction issued against the appellant was dissolved. 3. The appellant, though succeeded in getting an order in his favour as regards the order of injunction still filed this appeal being aggrieved by the judgment and decree dated 17.9.1999 passed by the learned Civil Judge, Senior Division, Thane as also the judgment and decree dated 10.2.2004 passed in Civil Appeal No. 193 of 1999 by the learned District Judge at Thane on the ground that the prayer made by the appellant for restoration of possession in respect of the suit premises has been rejected by both the courts. 4. I have extensively heard learned Advocates on both sides. The appellant, after the service of the suit summons on the appellant appeared before the court and filed written statement. In the written statement the appellant took up a positive stand that the appellant was in possession of the suit premises on 15.10.1994 and that between the night of 16.10.1994 and 17.10.1994 at about 1.00 a.m. to 2.00 a.m. respondent dispossessed the appellant and took the possession in respect of the suit premises. On the strength of this stand, the appellant filed an application in the trial court under Section 151 of the Code of Civil Procedure r/w. Section 39 of the Specific Relief Act. In the said application the appellant prayed that the order of status quo granted on 15.10.1994 in favour of the respondent be set aside. By prayer clause (b) it was prayed that the possession of the suit premises be restored to the appellant. It is required to be mentioned that the respondent instituted the suit on 15.10.1994 and applied for interim relief and order of status quo was granted so as to direct the parties to maintain status quo. The appellant claims that between the night of 16.10.1994 and 17.10.1994 the appellant was dispossessed. Possibly on account of this contention an application was filed as mentioned aforesaid. At the same time, the appellant did not file any counter claim for getting back the possession by making a specific prayer that the possession be restored. 5. The appellant claims that between the night of 16.10.1994 and 17.10.1994 the appellant was dispossessed. Possibly on account of this contention an application was filed as mentioned aforesaid. At the same time, the appellant did not file any counter claim for getting back the possession by making a specific prayer that the possession be restored. 5. It is seen that the learned trial Judge framed an issue on the question of restoration of possession to the present appellant by way of an additional issue. The text of the said additional issue is as follows:- "Is defendant and it led to mandatory injunction in respect of restoration of suit flat" The learned trial Judge answered the issue in negative. The learned trial Judge has given reasons for arriving at this decision. 6. As the learned trial Judge declined to grant restoration of possession of the suit premises to the appellant, the appellant made a grievance about it before the learned District Judge and persuaded the learned District Judge to frame following point for determination. "Whether the defendant is entitled for mandatory injunction for restoration of possession of the suit flat". The learned District Judge answered this point in the negative. Hence this second appeal is filed. 7. It was argued by learned Advocate Mrs. Deshmukh on behalf of the appellant that looking to the evidence on record and on the basis of contents of the application under Section 151 of C.P.C. the learned trial Judge ought to have granted possession in respect of the suit premises to the appellant at the end of the trial. According to her the reasons given by the learned trial Judge for answering the issue as regards restoration of the suit premises in the negative are not correct. She also submitted that the learned District Judge should have answered the issued as regards restoration of the possession of the suit premises in favour of the appellant. 8. According to her the stand taken by the appellant that he was dispossessed between the night of 16.10.1994 and 17.10.1994 was stated in the evidence and therefore it was necessary for the learned trial Judge as well as the learned District Judge to grant order of restoration. 8. According to her the stand taken by the appellant that he was dispossessed between the night of 16.10.1994 and 17.10.1994 was stated in the evidence and therefore it was necessary for the learned trial Judge as well as the learned District Judge to grant order of restoration. It was also argued on her behalf that though the suit was filed on 15.10.1994 the order granting status quo appears to have been passed on 17.10.1994 and therefore as per the roznama according to her the respondent acted in high handed manner and dispossessed the respondent and thereafter moved the court for an order of injunction which came to be granted in his favour. 9. Learned Advocate Mrs. Deshmukh therefore submitted that both the courts erred in appreciating the point as regards restoration of possession and that on proper appreciation of record both the courts should have granted possession to the appellant. 10. Learned Advocate Mr. Tangsali appeared on behalf of the respondent and opposed the submissions advanced on behalf of the appellant and submitted that since the order of status quo was granted on 15.10.1994 the court had accepted the contention of the respondent as regards possession of the respondent in regard to the suit premises and that is how the courts have appreciated the evidence and have rejected the stand of the appellant as regards restoration of possession. 11. Learned Advocate Mr. Tangsali supported the impugned judgments and decrees and submitted that no substantial question of law is involved in the present second appeal and the second appeal be dismissed. 12. In order to appreciate the case of the appellant as regards his possession in respect of the suit premises and dispossession of the appellant I had gone through the notes of evidence. It is noticed that the respondent examined himself as P.W.1 and one more person by name Warang, his immediate neighbour was examined as P.W.2. As against this, the appellant examined himself as D.W.1 and one Mr. Jadhav as D.W.2 and Mr. Gawade as D.W.3. In so far as the question of dispossession is concerned, the witnesses examined on behalf of the appellant, namely Mr. Jadhav and Mr. Gawade as P.W.2 and P.W.3 respectively are of no assistance to the appellant. As against this, the appellant examined himself as D.W.1 and one Mr. Jadhav as D.W.2 and Mr. Gawade as D.W.3. In so far as the question of dispossession is concerned, the witnesses examined on behalf of the appellant, namely Mr. Jadhav and Mr. Gawade as P.W.2 and P.W.3 respectively are of no assistance to the appellant. So far as the evidence of the appellant is concerned, in the examination in chief itself the appellant has stated that on 17.10.1994 at about 4.00 - 4.30 when he visited the suit premises, he found that the entrance gate of the said suit premises was open and his belongings were not in the suit premises. The appellant further states that he made enquiries with Mrs. Warang, and Mrs. Warang informed her that on 16.10.1994 between 1.00 to 2.00 in the night the respondent removed the articles and belongings from the suit premises and kept it near the water tank. The appellant further states that Mrs. Warang had stated to him that she had seen this event from the pinhole to her entrance door. A reading of this evidence as also the other evidence of the present appellant it is seen that the appellant does not categorically say that the respondent took possession in respect of the suit premises and put up his own lock so as to dispossess the appellant from the said premises. In view of the above, I hold that the contention of the appellant that the appellant was dispossessed from the suit premises can't be accepted. At the most it can be said that his belongings from the suit premises were removed and kept out of the suit premises. It is very pertinent to note that the appellant admits in examination in chief that when he visited the suit premises he found the entrance door of the suit premises open. If the case of the appellant that he was dispossessed from the suit premises, one would find a lock to the suit premises not owned by the appellant. 13. For the aforesaid reasons I hold that the appellant has failed to make out a case that the appellant was dispossessed from the suit premises on or about 16.10.1994. 14. If the case of the appellant that he was dispossessed from the suit premises, one would find a lock to the suit premises not owned by the appellant. 13. For the aforesaid reasons I hold that the appellant has failed to make out a case that the appellant was dispossessed from the suit premises on or about 16.10.1994. 14. In so far as the framing of issue by the learned trial Judge or by the learned District Judge, I am inclined to observe that mere filing of an application under Section 151 of the Code of Civil Procedure or Order 39 of CPC was not sufficient. If at all it was the case of the appellant that the appellant was dispossessed between the night of 16.10.1994 and 17.10.1994 and had lost possession in respect of the suit premises, pending the suit it was necessary for the appellant to file counter claim for getting back the possession of the suit premises. The appellant has not done so. In my view, on mere filing of application under Section 151 of the Code of Civil Procedure it was not proper on the part of the learned trial Judge to frame issue as regards restoration of the suit premises to the appellant. To that extent the learned trial Judge erred. This is so because the issue can be framed on the basis of what is contained in the plaint and what is contained in the written statement. However in the absence of specific prayer in the suit by way of counter claim, a mere averment in the written statement that the appellant was dispossessed from the suit premises was not sufficient to frame the issue as regards restoration of the suit premises to the appellant. It appears that the learned District Judge framed the point for determination as mentioned above as the learned trial judge had framed issue on the question of restoration of possession and answered it against the appellant. In view of this, the framing of issue was not proper. Even otherwise in the earlier part of the judgment I have observed that the case of the appellant that he was dispossessed from the suit premises is not made out. In view of this, the framing of issue was not proper. Even otherwise in the earlier part of the judgment I have observed that the case of the appellant that he was dispossessed from the suit premises is not made out. Once it is observed that the case of the appellant that he was dispossessed from the suit premises is not made out on the basis of the evidence on record, surely the learned trial Judge as well as the learned District Judge were right in not granting the relief of restoration of possession of suit premises to the appellant. 15. For the reasons mentioned aforesaid, the substantial question of law framed as mentioned aforesaid is answered in the negative. 16. The second appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Appeal dismissed.