1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 418 of 2008 SECOND APPEAL NO. 418 of 2008 SECOND APPEAL NO. 418 of 2008 Shri Jagannath Tukaram Desai & Ors. ..Appellants (Org. Defendants) Versus Shri Raghunath Balu Mali ..Respondent (Orig. Plaintiff) Mr. Pramod J.Pawar, Advocate, for the appellants. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 5th August, 2008. DATE: 5th August, 2008. DATE: 5th August, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the appellants, who are the original defendants. 2. The plaintiff-respondent had filed the suit contending that his father had purchased half share in the land Gat NO.1094 admeasuring 27 Ares (old Survey No.182/31) situated at Village Kole in 1971 under a 2 registered sale deed. That half share is the northern portion of the land and southern half share belong to the defendants. However, the defendants had, by making encroachment, put up their shed on 3 Ares of land. Therefore, the plaintiff filed Regular Civil Suit No.364/1981 seeking mandatory injunction for removal of that shed. The defendants contended that the land Gat No.1094 was held by Shankar and his brother Mahadu - Shankar held 1/3rd share and Mahadu held 2/3rd share in the land. The defendants had purchased 2/3rd share from Mahadu under a registered sale deed in 1979. According to them, even though the sale deed executed by Shankar in favour of the plaintiff’s father is in respect of half share, in fact, Shankar was only having 1/3rd share in the land and, therefore, the plaintiff can claim the right and title over the 1/3rd share only and not more than that. With this contention, the defendants denied that there was any encroachment. In the alternative, they also contended that they have perfected their title by adverse possession. 3. After hearing the evidence of both the parties, the trial Court rejected the contentions of the defendants and decreed the suit. The defendants thereafter preferred Regular Civil Appeal No.73 of 2005. That appeal was also dismissed. Thus, against the 3 concurrent findings of fact, the defendants have preferred this Second Appeal. 4. The trial Court noted that the original survey No.182/31 was recorded in the names of Nana and Mahadu - both sons of Krishna Desai. In the Hak Patra of 1952 as well as in the Record of Rights for the year 1964-66, Nana and Mahadu were shown as owners of the half share each in the land and this fact was also admitted by the defendant No.1 - Jagannath himself in his evidence. Shankar was the son of Nana. In 1969, Shankar and Madhu were shown to be holding half share each in the land. Shankar sold his half share in 1964 to one Krishna Desai and on 1.7.1971 Krishna Desai sold the said half share to Baburao Mali, who was the father of the plaintiff. Defendant No.1 - Jagannath claims to have purchased 2/3rd share from Mahadu. However, he admitted that Mahadu was having only half share. However, as per the sale deed executed by Kisan Desai in favour of defendant No.1, the defendant NO.1 had purchased the 2/3rd share. The trial Court minutely considered the documentary evidence and came to conclusion that Kisan son of Mahadu had only half share and he never sold 2/3rd share to defendant No.1 in 1970. On the other hand, Shankar son of Nana had already sold the half share to Krishna Desai from whom the plaintiff’s father 4 purchased the land in 1971. The first appellate Court fully agreed with the findings of the trial Court. I do not find that any substantial question of law is involved in the Second Appeal. 5. Therefore, the Appeal stands dismissed summarily. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)