1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO.287 OF 1990 1. Baijabai w/o Gangaram, died L.R. 2. Rukminibai w/o Jaiwanta, died L.Rs. i) Ramchandra s/o Jaiwanta @ Jaiwantrao Chikatwad, Age 55 years, Occ. Agri., R/o Jahoor, Tq. Mukhed, District Nanded. ii) Balaji s/o Jaiwanta @ Jaiwantrao Chikatwad, Age 30 years, Occ. Agri., R/o as above. ... APPELLANTS (Original Plaintiffs) VERSUS 1. Sidhram Nagoba, died, L.Rs. 1-a) Dhondyabai w/o Sidram, Age about 55 years, Occ. Agri., R/o Jahoor, Taluka Mukhed, District Nanded. 1-b) Mahadabai w/o Maroti, Age 32 years, Occ. Houseld, R/o as above. 1-c) Rajendra s/o Sidhram, Age 25 years, Occ. Service, R/o as above. 2 1-d) Nagorao s/o Sidhram, Age 25 years, Occ. Agri., R/o as above. 2. Maroti Sidhram, Age 31 years, Occ. Agriculture, R/o Jahoor, Taluka Mukhed, District Nanded. RESPONDENTS (Original Defendants) ..... Shri Girish Joshi, Advocate holding for Shri M.V. Deshpande, Advocate for the appellants Shri K.M.Nagarkar, Advocate for the respondents. ..... CORAM : S.P. DAVARE, J. DATED : 25th June, 2009. ORAL JUDGMENT : 1. Perused. 2. By the present Second Appeal, the appellants have challenged the judgment and order passed by learned 3rd Additional District Judge, Nanded on 31.8.1989 in Regular Civil Appeal No. 249/1982 and prayed that same be quashed and set aside. 3. The appellants (original plaintiffs) had filed Regular Civil 3 Suit No.240/1981 against the defendants before Civil Judge, Junior Division, Mukhed, and thereby prayed for declaration for right of ownership and also for perpetual injunction against the defendants, requesting to restrain them from interfering and obstructing in peaceful possession of the plaintiffs over the suit land Survey No.46/A, admeasuring 2 acres 22 gunthas, Survey No.46/B admeasuring 14 acres 21 gunthas, to the extent of 12 acres 17½ gunthas of western side and Survey No.46, admeasuring 3 acres of village Jahoor, Taluka Mukhed, District Nanded. 4. The defendants opposed the said suit and denied that the suit lands are ancestral properties of the plaintiffs and also denied the ownership and possession of the plaintiffs regarding the suit lands. According to the defendants, the suit land i.e. Survey No.46 and non-suit land Survey No.45 were shown in the civil suit bearing No.240/-1 of 1456 Fasli and it was ended in compromise. In that compromise, land Survey No.46-A, admeasuring 2 acres 22 gunthas was given to the plaintiffs and Survey No.46/B, admeasuring 17 acres and 35 gunthas were allotted to defendant No.1. Likewise, the share of the plaintiff No.1 was separated by giving land Survey No.45. It was settled that the land Survey No.46/A which was given to plaintiff No.1, the plaintiff No.1 will enjoy till her lifetime and then defendant No.1 will become owner of the said land. Accordingly, in Khasra Pahani of 1954-55 and Pahani Patrak of 1955-56 to 1959-60, likewise, in the 7/12 extracts from 1960-61 to 1981-82, there is entry in the name of defendant No.1 as owner and possessor of land Survey No.46/B. It is also submitted that 4 the land Survey No.46/B was divided in two pieces and one piece bearing Survey No.46/B-2, admeasuring 14 acres 29 gunthas and Survey No.46/B-2, admeasruing 3 acres and 6 gunthas. Thereafter the defendant No.1 sold the second piece of land to defendant No.2 before 1980. The defendant No.1 is owner and possessor of Survey No.46/B since 1954 and he is in adverse possession for more than 12 years over Survey No.46/B. It is also the contention of defendants that plaintiffs were never in possession of Survey No.46/B. Accordingly, defendants submitted that the said suit be dismissed. 5. Considering the rival contentions, the learned Civil Judge, Junior Division, Mukhed decreed the said suit vide judgment and order dated 22.4.1982 without costs and directed that the plaintiffs are declared as owners and possessors of land Survey No.46/A admeasuring 2 acres 22 gunthas and Survey No.46 admeasuring 2 acres 8 gunthas of village Jahoor, Taluka Mukhed and the defendants are perpetually restrained from obstruction and interference of land Survey No.46/A and Survey No.46 to the extent of 2 acres 8 gunthas in the possession of plaintiffs. It was also directed that the plaintiff No.2 became owner and possessor of land S.No.46/A admeasuring 2 acres 22 gunthas and S.No. 46 to the extent of 2 acres 8 gunthas of village Jahoor after demise of plaintiff No.1 as the only legal heir of plaintiff No.1. It was further directed that the plaintiffs and defendants are directed that they should get measured the land S.No.46 through D.I.L.R., Nanded and the defendants should give the possession to the extent of 2 acres 8 gunthas 5 of land S.No.46 to the plaintiffs adjacent to their land S.No.46/A of village Jahoor. 6. Being aggrieved by the said judgment and order dated 22.4.1982, passed by learned Civil Judge, Junior Division, Mukhed, the plaintiffs preferred Regular Civil Appeal No.249/1982 before the District Court, Nanded and thereby assailed the said impugned judgment and order dated 22.4.1982. Accordingly, the learned 3rd Additional District Judge, Nanded heard the said appeal and same came to be dismissed with costs, vide judgment and order passed by him on 31.8.1989. Being aggrieved by the said judgment and order dated 31.8.1989, passed by learned 3rd Additional District Judge, Nanded in Regular Civil Appeal No.249/1982, the appellants have preferred the present Second Appeal. 7. Heard both the learned counsel for respective parties. 8. At the outset, it is material to note the observations made by lower appellate Court i.e. 3rd Additional District Judge, Nanded in para No.10 of the impugned judgment dated 31.8.1989 which reads as follows : “10. In view of the facts and circumstances of the above case and as the matter is settled by the parties to the suit, I find the Court is justified in giving the decree 6 in favour of the plaintiffs as per the terms settled between the parties to the suit. I am unable to understand why the appeal is filed by the plaintiffs against the said decree, without any merits. Thus, I find that the appeal is to be dismissed. I accordingly pass the following order : O R D E R Appeal is dismissed with costs. ” 9. Accordingly, the learned 3rd Additional District Judge, Nanded, making the said observations in his judgment and order dated 31.8.1989, dismissed the said appeal being Regular Civil Appeal No.249/1982. 10. Keeping in mind the said observations and coming to the present Second Appeal, admittedly there has to be substantial question of law to entertain the Second Appeal. In the said context, the appellants/ plaintiffs took the ground that both the courts below have failed to ascertain the long standing record in favour of the plaintiffs and thus, it amounts to substantial question of law being a finding against the record. However, the aspect of alleged non-appreciation of long standing record would not amount to substantial question of law and hence, the said ground i.e. ground No.VI cannot be construed as substantial question of law in the present Second Appeal. 7 11. Moreover, it is also contended by the appellants that both the courts below failed to consider the alleged compromise in the suit and failed to appreciate the consolidation proceedings and non consideration of the said material aspects also amounts to substantial question of law. However, even assuming for the sake of assumption without admitting that the compromise in the suit was not considered by both the courts below as well as not considered the consolidation proceedings, at the most that would amount to defect in appreciating the facts and would not amount to any substantial question of law. 12. In view of the aforesaid position, apparently there is no substantial question of law in the Second Appeal as well as the learned counsel for the appellants could not point out any substantial question of law to be considered in the present Second Appeal. Besides, as mentioned hereinabove, the observations made by lower appellate Court in para 10 of the judgment and order dated 31.8.1989 in Regular Civil Appeal No.249/1982 cannot be overlooked and ignored. 13. In the result, the present Second Appeal bears no substance and same is devoid of any merits. Hence, the Second Appeal stands dismissed. In the facts and circumstances, there shall be no order as to costs. (S.P. DAVARE, J.)