hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE SECOND APPEAL NO. 641 OF 2006 Shri. Ramchandra Laxman Bandgar ... Appellant Versus Smt. Tanubai Narayan Rajamane and Ors. ... Respondents Mr. S.G. Deshmukh, Advocate for the appellant. CORAM : A.S. OKA,J. DATED : NOVEMBER 17, 2011 P.C. This is second appeal preferred by the original plaintiff. The subject matter of the suit is land bearing S. No. 245/1A admeasuring 2 Acres and 36 Gunthas at village Amanpur, Taluka Tasgaon, District Sangli. According to appellants, after consolidation proceedings under the Bombay Prevention of Fragmentation and Consolidation Holdings Act, 1948, a portion admesuring 95 Ares out of Survey No. 245/1A became a part of Gut no. 542 and a portion of 18 Ares became part of Gut no. 541. 1 hvn 2. According to the case of the appellant, the first respondent/first defendant was owner of the suit property. A third party filed a suit for recovery of certain amount against the first respondent. The suit was decreed. In execution, the suit property was purchased by a purchaser on 21.6.1966. According to the case of the appellant, the possession was taken from the first respondent and the purchaser was placed in possession. On 22.6.1968, the appellant purchased the suit property from the said purchaser Mr. Bhandari. The case made out by the appellant is that taking undue advantage of the proceedings under the said Act of 1948, the appellant was dispossessed and therefore, the present suit for possession was filed. 3. The suit was contested by first respondent by contending that he had only 1/4th share in the suit property which was sold by him on 4.7.1961. It is his case that purchaser Bhandari did not get any title. The second respondent came out with the same case. He contended that in the consolidation scheme, the entire land bearing survey No. 245/1A was allotted to a third party and first respondent was given a different land. Sixth respondent filed written statement contending that he along with 2 hvn seven to tenth respondents were allottees of land bearing Gut no. 541 and 542 under the consolidation scheme and therefore, the auction purchaser Mr.Bhandari did not acquire any title. 4. The trial Court dismissed the suit by holding that the appellant had no title. The trial Court disbelieved the case of dispossession. The appellate Court in appeal preferred by the appellant has confirmed the decree. 5. The learned counsel appearing for the appellant submits that his predecessor purchased the suit property in the Court auction and the possession was taken from the first respondent and was delivered to his predecessor in title. He submits that reliance has been placed by the defendants on various transactions which have allegedly taken place after the institution of the suit against the first respondent. In execution of the decree passed in the said suit, the predecessor of the appellant purchased the suit property and was placed in possession thereof. He submits that record produced before the trial Court shows that the appellant was placed in possession of the suit property as the purchaser of the suit property from auction purchaser and the title conferred on the 3 hvn predecessor of the appellant will not be affected by the transactions allegedly effected by the first respondent during the pendency of the suit. He submits that the effect of consolidation scheme is only the change of numbers and therefore, the title of the appellant cannot be defeated. He submits that in any event, the dispossession of the appellant was certainly proved as there is evidence on record to show that the predecessor of the appellant was placed in possession under the orders of the executing Court. 6. I have carefully considered the submissions. The predecessor of the appellant who is the purchaser in Court auction gets the property on "as is where is basis" and merely because he has purchased the property in Court auction, it will not confer title on the purchaser which was not vesting in the first respondent. The finding of fact recorded by the appellate Court is that in April, 1966 in consolidation scheme, Gut nos. 541 and 542 were allotted to the defendant nos. 6 to 10. Admittedly, the suit property forms part of the said two Gut numbers. It is pointed out that on the basis of order dated 23.5.1967 of the executing Court, the possession of the suit property was ordered to be handed over to the purchaser. The sale in favour of the predecessor 4 hvn of the appellant was completed on 21.06.1966. It is not disputed that the suit property became a part of Gut nos. 541 and 542 before the said date. There was no challenge by the appellant to the consolidation scheme. Thus the finding is that on the date of the sale in court auction in favour of predecessor of the appellant, first respondent had no title in respect of the suit property as he was allotted another land in the consolidation scheme. 7. Issue No. 1 framed by the appellate Court shows that the suit for possession was not based only on prior possession. It was based on the title as owner. In view of the aforesaid findings, the Courts below have held that the predecessor of the appellant could not have acquired any title on the basis of the Court auction in as much as on the date of the auction, the first respondent had no title. As the suit for possession was based on title, once the appellant failed to prove title, the Courts below were justified in dismissing the suit. No substantial question of law arises. Second appeal is accordingly dismissed. (A.S. OKA,J.) 5