Oral Judgment: 1. Heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants and Shri Mulgaonkar, learned Counsel appearing for the Respondents. 2. The above Appeal came to be admitted by an Order dated 25.06.2010, on the following substantial questions of law: (i) Whether in a suit for injunction simpliciter, the finding of possession recorded by the Courts below in favour of the Respondents, is perverse having been rendered. (ii) On the wrong assumption that name of plaintiff no. 1 alone is recorded in the survey records when in fact the names of large number of persons are entered herein as occupants. (iii) Contrary to the admissions that there are other co-owners of the said property surveyed under no. 40/3, with large number of houses located therein, a position duly corroborated by survey plan. (iv) Contrary the admission made by the Plaintiff no. 2 (Pw.1), to the effect that the defendants were having their residential house in the suit property surveyed under no. 3, and they were residing therein. (v) Contrary to the statements made in the deposition of Pw.1 to the fact that the Plaintiffs were obstructed from enjoying the trees in the suit property since the death of his parents in law, which occurred in the year 1974 and 1989 respectively. 3. During the course of the hearing of the above Appeal, Shri S. D. Lotlikar, learned Senior Counsel has pointed out that an additional substantial question of law arises with regard to the findings arrived at by the Courts below to the effect that Respondent no. 1 is in fact the daughter of Pandurang Tari. Learned Senior Counsel has taken me through the Judgment of the Lower Appellate Court and pointed out that the learned Judge has relied upon a birth certificate at exhibit Pw.1/A which is of the year 1953 to come to the conclusion that the Respondent no. 1 was the daughter of Pandurang. Learned Senior Counsel further points out that the birth of Respondent no. 1 was already registered as daughter of Dharmu immediately upon her birth on 09.05.1936, inter alia, disclosing that the date of birth is 28.04.1936 whereas the document at exhibit Pw.1/A discloses that the date of birth is 05.03.1939. 1 was the daughter of Pandurang. Learned Senior Counsel further points out that the birth of Respondent no. 1 was already registered as daughter of Dharmu immediately upon her birth on 09.05.1936, inter alia, disclosing that the date of birth is 28.04.1936 whereas the document at exhibit Pw.1/A discloses that the date of birth is 05.03.1939. Learned Senior Counsel has taken me through the said birth certificate and pointed out that ex-facie the document at exhibit Pw.1/A is a nullity and, as such, the learned Judge has arrived at a perverse finding that the Respondent no. 1 was the daughter of said Pandurang. 4. On the other hand, Shri J. P. Mulgaonkar, learned Counsel appearing for the Respondents, has vehemently opposed the framing of any additional substantial question of law. Learned Counsel further pointed out that both the Courts below have concurrently on the basis of the evidence on record, come to the conclusion that the Respondent no. 1 was the daughter of said Pandurang. Learned Counsel further pointed out that as the Courts below have correctly come to such conclusions the question of framing any substantial question of law on that count is not at all acceptable. Learned Counsel further pointed out that the learned Judge whilst appreciating the evidence on record, has drawn a presumption under Section 114 of the Evidence Act to arrive at such conclusion. 5. Upon hearing the learned Counsel and on perusal of the record, I find that the document at exhibit Pw.1/A was on the basis of the declaration given by the Respondent no. 1 herself through one postman Khan. Apart from that, the witness to the said documents have also not been examined to establish the said aspect. On the other hand, the document at exhibit Dw.1/B which is stated to be also of Respondent no. 1 discloses that such declaration was in fact given by Dharmu and his wife who were the parents of such child. Apart from that, in the year 1953 considering the date of birth disclosed in Pw.1/A, the Respondent no. 1 would be merely 14 years old. As the Courts below have not examined the said aspect whilst coming to the conclusion that the Respondent no. Apart from that, in the year 1953 considering the date of birth disclosed in Pw.1/A, the Respondent no. 1 would be merely 14 years old. As the Courts below have not examined the said aspect whilst coming to the conclusion that the Respondent no. 1 was the daughter of said Pandurang, I find that misreading the document and non consideration of these crucial circumstances by itself can be considered to be a perverse finding of fact. In such circumstances, I find that an additional substantial question of law arises in the present Appeal which reads thus: (i) Whether the findings of the Courts below that the Respondent no. 1 is the daughter of Pandurang, is perverse by misreading the pleading and the evidence on record? 6. Notice with regard to the said substantial question of law was also given to the Respondents and, as such, by consent of both the learned Counsel, the matter was heard on merits. 7. Shri S. D. Lotlikar, learned Senior Counsel appearing for the Appellants, has pointed out that on the basis of the document at Exhibit Dw.1/B, it cannot be disputed that the Respondent was the daughter of said Dharmu. Learned Senior Counsel further pointed out that as Pandurang had no issues, right of inheritance would devolve upon his brother Dharmu upon his death. Learned Senior Counsel further pointed out that to defeat such right of inheritance of said Dharmu, the Respondent no. 1 got herself registered as the daughter of said Pandurang. Learned Senior Counsel further pointed out that the document at exhibit Pw.1/A itself is a nullity as, according to him, as the birth of Respondent no. 1 was already registered way back in the year 1936, the question of registering the birth of the Respondent no. 1 again in the year 1953 is not at all permissible. Learned Senior Counsel further pointed out that as the document at exhibit Pw.1/A is a nullity, no reliance can be given to such document to come to the conclusion that the Respondent no. 1 was the daughter of said Pandurang. Learned Senior Counsel further pointed out that when the document is a nullity nullity, the question of relying on Section 114 of the Evidence Act, does not arise at all. 1 was the daughter of said Pandurang. Learned Senior Counsel further pointed out that when the document is a nullity nullity, the question of relying on Section 114 of the Evidence Act, does not arise at all. On the contrary, considering that the document at Exhibit Dw.1/B is one on the basis of a declaration of said Dharmu himself, presumption itself in terms of Section 114 of the Evidence Act is to be drawn from exhibit Dw.1/B. Learned Senior Counsel has taken me through the Judgment of the Lower Appellate Court and pointed out that both the Courts below have failed to examine the said aspect as there is misreading of the evidence by the Courts below which resulted in a perverse finding of fact. 8. On the other hand, Shri J. P. Mulgaonkar, learned Counsel appearing for the Respondents, has supported the impugned Judgment passed by the Courts below. Learned Counsel further pointed out that both the Courts have come to the conclusion that the document at exhibit Pw.1/A is the correct birth certificate of the Respondent no. 1. Learned Counsel further pointed out that the Appellants have failed to establish that the birth certificate at exhibit Dw.1/B is that of the Respondent no. 1. The learned Counsel further pointed out that there is no fraud alleged by the Appellants with regard to the registration of the document at exhibit Pw.1/A and, as such, the question of now disputing the correctness of said birth certificate is not at all justified. Learned Counsel further pointed out that the other material produced on record corroborates that the Respondent no. 1 is the daughter of said Pandurang and as such the question of any interference in the present Second Appeal does not arise at all. Learned Counsel further pointed out that in any event the right to raise such contentions is barred by law of limitation and, as such, the Appellants are precluded from raising such contentions. 9. In reply to the contentions of Shri Mulgaonkar, learned Counsel appearing for the Respondents, Shri S. D. Lotlikar, learned Senior Counsel appearing for the Respondents, has pointed out that it was the case of the Respondents that Dharmu had only three children though the Appellants have produced documents on record to establish that in fact the said Dharmu had four children. Learned Senior Counsel as such pointed out that the burden was on the Respondents that the said Dharmu had only three children. 10. I have carefully considered the submissions of the learned Counsel appearing for the respective parties. I have also gone through the records. On perusal of the evidence on record specially the document at Exhibit Pw.1/A, I find that the declarant therein is by a person who is not even a member of the family. In such circumstances, when the Appellants have produced a document to establish that the Respondent no. 1 was in fact the daughter of said Dharmu, which is at Exhibit Dw.1/B. As such, the learned Judge ought to have weighed the evidence on record to ascertain on which document the presumption under Section 114 of the Evidence Act can be drawn. Prima facie, on perusal of the document at exhibit Pw.1/A, the declarant is at the instance of the Respondent no. 1 herself who was aged 14 years. No member of the family has given any declaration to the effect that the Respondent no. 1 is the daughter of Pandurang. The document at exhibit Dw.1/B shows otherwise. On the basis of the document at exhibit Dw.1/B, the age of the person stated therein is 18 years at the relevant time. It is submitted that the birth of the Respondent no. 1 was registered at the time of her marriage. The question of a person of 14 years marrying at the relevant time, cannot be accepted. Considering all the evidence on record, I find that the Courts below have misread the evidence on record and have drawn an erroneous presumption in law whilst coming to the conclusion that the Respondent no. 1 was the daughter of said Pandurang. 11. Without going into the rival contentions on merits, I find it appropriate, in the interest of justice, that the matter be remanded to the Lower Appellate Court to decide the Appeal afresh after hearing the parties on its own merits in accordance with law. All the contentions of the parties are left open. With regard to the substantial question of law, I find that it is well settled that even in a suit for permanent injunction, the title of a person to remain in possession would have to be established. All the contentions of the parties are left open. With regard to the substantial question of law, I find that it is well settled that even in a suit for permanent injunction, the title of a person to remain in possession would have to be established. The title of the Respondents over the suit property would rest upon the fact whether she was the exclusive owner of such property. 12. As the matter is being remanded, I find that the question of granting permanent injunction would have to be reexamined by the Lower Appellate Court after the decision is arrived at in the Appeal before the Lower Appellate Court which is to be decided afresh. The other substantial questions of law referred to herein above need not be gone into in view of the observations made herein above and contentions with that regard of both the parties are left open. 13. In view of the above, I pass the following : ORDER (I) The Appeal is partly allowed. (II) The Judgment and Decree dated 17.09.2008 is quashed and set aside. Regular Civil Appeal no. 33/2002, is restored to the file of the learned District Court. (III) The learned District Court is directed to decide the said Appeal afresh on its own merits. after hearing the parties in accordance with law. (IV) All contentions of the parties are left open. (V) The parties are directed to appear before the Lower Appellate Court on 11.04.2014 at 10.00 a.m.