1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 186 Of 2000 Shri Dadasaheb Ganpati Kanse, since deceased through his legal heir: Smt. Shevantabai Dadasaheb Kanse ... Appellant (Org.defendant) Vs. Shri Mohamad Hanif Sahebji Mulla since deceased by his legal heirs and representatives :- a. Smt. Suraiya Mohamed Hanif Mulla & Ors...Respondents Shri S.M.Gorwadkar,Advocate for the appellant. Shri Uday Warunjikar a/s Nitin Patil, Advocates for the respondent. CORAM: J.H.BHATIA,J. DATE : 14th September, 2009. P.C. 1. Heard the learned Counsel for th eparties. 2. This is the Second Appeal filed by the original defendant against the concurrent finding of facts by the Courts below. The consolidation of land had taken place sometime in 1973 and completed sometime in 1984 in the village. Land Gat no.1058 admeasuring 61 Ares was allotted to the plaintiff during the consolidation and land Gat No.1060 situated to the south of the land of the plaintiff was allotted to the defendant. According to the plaintiff, he was living 2 out of the village because of service and taking advantage of his absence from the village, after implementation of the Consolidation Scheme, in the year 1987-88, the defendant committed encroachment on 8 Ares land from southern side of Gat No.1058. Therefore,with consent of the defendant, the land was measured by the District Inspector of Land Records, Satara on 19.12.1988. He fixed the boundaries and confirmed that the defendant had encroached upon 8 Ares land of the plaintiff. That 8 Ares land is the suit land. The plaintiff filed Regular Civil Suit No.346 of 1990 for possession of suit land. 3. The defendant contended that at the time of the Consolidation proceeding,12 Ares land out of his land Survey No.340/4E was included in Gat no.1058 and in exchange, no compensation or land was given to him and that suit land is actualy his land. Thus, the defendants challenged the correctness of the Consolidation proceeding. The trial Court decreed the suit. Appeal filed by the defendant also came to be dismissed, except to the extent of modification in the mesne profits. 4. The learned Counsel for the defendant/appellant, relying upon the Judgment of this Court in Yeshwant Ramchandra Dhumal vs. Shankar Maruti Dhumal and another 2001 (2) Mh.L.J.576 contended that when there is a 3 dispute about the correctness of the Consolidation Scheme proceeding in view of Section 36A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short, “the said Act”), Civil Court has no jurisdiction to entertain any question which is to be determined by the Competent Authority under the said Act and the matter should have been referred to the Competent Authority under Section 36B. In the case of Yeshwant vs. Shankar the land was allotted to the defendant by the Consolidation Officer under the scheme and the plaintiff had challenged the same by filing the suit. In those circumstances, this Court held that Civil Court had no jurisdiction to entertain the suit. That authority is not applicable to the facts of the present case because under the Consolidation Scheme, land Gat no.1058 was allotted to the plaintiff and according to him, encroachment was made by the defendant later on. If the defendant wanted to challenge the correctness of the Consolidation proceedings and the allotment of land, he could have challenged before the Competent Authority. He never challenged it. After completion of the Consolidation Scheme, the defendant encroached upon the land allotted to the plaintiff and therefore he could certainly file a suit for possession and the trial Court had jurisdiction to entertain the suit. 5. Mr. Gorwadkar, the learned Counsel for the appellant contends that 4 the question is whether the suit land is part of Gat No.1058 of the plaintiff or Gat No.1060 belonging to the defendant. In my opinion, this is not a question of law because both the courts below have given concurrent finding that the suit land admeasuring 8 Ares is part of Gat No.1058 and this was determined by the D.I.L.R. also at the time of measurement. 5. In view of the concurrent finding of facts and the circumstances, I do not find any substantial question of law involved in the Appeal. In the result, Second Appeal stands dismissed. (J.H.BHATIA,J.)