IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.1078 OF 2004. APPEAL NO.1078 OF 2004. APPEAL NO.1078 OF 2004. Tanaji Kashinath Havale & Ors. ...Appellants. Versus. Bhagwan Hariba Raskar & Ors. ...Respondents. Shri M.A.Patil for the Appellants. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 05th February, 2008. : 05th February, 2008. : 05th February, 2008. P.C.: P.C.: P.C.: 1. Heard advocate appearing for the appellants. The appellants are the original defendants in a suit filed by the first respondent. The trial Court passed a decree for partition only to the extent of area of 1 acre and 10 gunthas out of the suit property mentioned in clause (c) of the paragraph No.1 of the plaint. In an appeal preferred by the appellants, the said decree has been confirmed by the District Court. 2. The first submission of the learned advocate for the appellants is that the first respondent purchased the suit property by a registered Sale Deed dated 12th January, 1962 from deceased Ramchandra and the said Sale Deed was itself invalid in view of the applicability of the consolidation scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. It was further submitted that Sale Deed was hit by the provisions of the Maharashtra Co-operative Societies Act, 1960 and therefore, on the basis of the said Sale : 2 : 2 : 2 : Deed the first respondent has not acquired any right, title or interest. He submitted that a specific contention was raised in the written statement that the Sale Deed was hit by the provisions of the said Act of 1947. He pointed out that on the basis of the said contention no issue was framed by the trial Court and therefore, the appellants were prevented from leading evidence on this aspect. He, therefore, submitted that this is a fit case for passing an order of remand. 3. I have carefully considered the submissions. The first respondent filed the suit on 16th November, 1989. The written statement was filed by the appellants on 25th October, 1991 raising the aforesaid contention. The suit was decided on 30th April, 1997. At no stage the appellants applied to the trial Court for recasting the issues. The appellants did not lead any evidence to show that when the Sale Deed dated 12th January, 1962 was executed the consolidation scheme was already in force in the village. Nothing prevented the appellants from placing the relevant notification on record to show that the consolidation scheme was already applied to the village on 12th January, 1960. There was more than enough opportunity available to the appellants to apply to the trial Court for framing an issue on the said aspect. No reasons are assigned as to why appellants made no effort to lead evidence on this aspect. : 3 : 3 : 3 : Therefore, the Appellate Court was right in holding that the appellants have not led any evidence to show the existence of notification prior to 06th December, 1962. 4. Even the second submission made by the advocate for the appellants has been referred to the Appellate Court. In paragraph No.14 of the judgment of the Appellate Court, it is observed as under: "14. The appellants have challenged the legality of the sale deed executed by late Ramchandra Raskar in favour of the respondent No.1 on two grounds. According to them, the land was mortgaged to co-operative society sale deed was executed and therefore it is hit by the provisions of the Bombay Co-operative Societies Act. That point has been dealt with by the learned Trial Judge and he has come to the conclusion that the sale deed is not hit by the provisions of the said Act. The learned advocate of the appellants Mr.Chavan has made the statement at bar that the appellants do not press point. Therefore, it is not necessary for me to consider the same." 5. Thus, the Appellate Court has observed that the second contention raised by the appellants was not : 4 : 4 : 4 : pressed by the appellants before the District Court. Hence, the said contention cannot be allowed to be agitated in the Second Appeal. 6. No substantial question of law arises. Second Appeal is dismissed. There will be no orders as to costs. 7. In view of dismissal of the Second Appeal, Civil Application No.492 of 2003 does not survive and the same is rejected. Judge. Judge. Judge.