1 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.685 OF 2007 SECOND APPEAL NO.685 OF 2007 SECOND APPEAL NO.685 OF 2007 Damu Ganpat Dhivande .. Appellant V/s. Kacharu Pandurang Dhivande & Ors. .. Respondents Mr.M.M.Sathaye for the Appellant. Mr.G.R.Agrawal for Respondent Nos. 1 to 5. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. CORAM : R.M. SAVANT, J. DATE : JULY 14TH, 2008. DATE : JULY 14TH, 2008. DATE : JULY 14TH, 2008. P.C. P.C. P.C. . The Second Appeal arises out of the Judgment and decree dated 25th April, 2007 passed by the learned District Judge, Nashik. By the said Judgment and decree, the decree passed by the Trial Court dated 31st September, 2002 came to be confirmed. 2. There is a concurrent finding of the Courts below in so far as the title of the Respondents herein to the land bearing Gut No.341 B is concerned. Both the Courts below have came to the conclusion on the basis of the material that was before them, that the 2 Respondents herein i.e. the Plaintiffs have established their right, title and interest in respect of the said land bearing Gat No.341 B. Both the Courts below have held that the said land has come to the Respondents by way of partition that took place between the brothers Pandu and Damu in the year 1954 - 1955. The title of the Respondents Plaintiffs has also been upheld on the basis of the allotment and transfer of Gat No.341 B and also on the basis of the certificate issued by the Consolidation Authority, pursuant to the Consolidation Scheme which was implemented in the said village in the year 1973. 3. It has been held by the Courts below that the Defendant No.2 i.e. the Appellant herein is neither having any right, title or interest nor adduced any evidence and that the transaction between the Defendant Nos. 1 and 2 and in respect of the sale of the land in question is void-ab-initio and against the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Both the Courts below however have held that since the Plaintiff is not in possession of the suit property, injunction could not be granted to the Plaintiffs. 3 4. In my view, both the Courts below have recorded the said findings of fact on the basis of the material that was before them. In so far as the Appellants are concerned, their sole reliance is on the pencil entry made in the revenue records, which entry according to the Plaintiffs was made fradulently. However, in so far as the Respondents are concerned, there is a plethora of evidence in the form of revenue record which has been effected pursuant to the Consolidation Scheme. 5. The learned counsel for the Respondents relied upon the Judgment of the Apex Court reported in AIR AIR AIR 1995, Supreme Court Cases Pg.No.1728 in case of 1995, Supreme Court Cases Pg.No.1728 in case of 1995, Supreme Court Cases Pg.No.1728 in case of Digambar Adhar Patil V/s. Deoram Giridhar Patil. Digambar Adhar Patil V/s. Deoram Giridhar Patil. Digambar Adhar Patil V/s. Deoram Giridhar Patil. Wherein the Apex Court held in so far as factum of partition between two brothers are concerned, entries in the records of Rights maintained in official course of business is relevant piece of evidence. The next Judgment relied upon by the learned counsel for the Respondents is the Judgment at the Apex Court reported in AIR 2006 Supreme Court Cases page No.1249, in case AIR 2006 Supreme Court Cases page No.1249, in case AIR 2006 Supreme Court Cases page No.1249, in case of N.Khosla V.s. Rajlaxmi (Dead) and Ors. of N.Khosla V.s. Rajlaxmi (Dead) and Ors. of N.Khosla V.s. Rajlaxmi (Dead) and Ors. Wherein the Apex Court has held that the mutation obtained by fraudulent means is nonest just like decree obtained by 4 fraud and nullity. Relying upon the said Judgement, it is submitted on behalf of the Respondents that since the land in question has come to the Respondents in the Consolidation Scheme, there could never have been any entry effected in favour of the Appellants. 6. In my view, the Second Appeal does not involve any substantial question of law. The Second Appeal is, accordingly, dismissed. 7. At this stage, the learned counsel for the Appellants prays for stay of the order. Prayer is refused. 8. In view of the dismissal of the Second Appeal, the Civil Application No.1225 of 2007 does not survive and is disposed of accordingly. [R.M. SAVANT, J.] [R.M. SAVANT, J.] [R.M. SAVANT, J.]