1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal NO. 410/2009 (Lilawati Vasantrao Pingle VERSUS Shri P.Pu. Wakrutund Maharaj Kavishwar Smarak Vishwastha Mandal & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.V. Khare & Shri Shrikant Saoji, counsel for the appellant. Shri A.V. Bhide, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 6, 2010 . Heard the learned counsel for the parties. The appellant is the original defendant. A suit was filed by the respondent-trust for removal of encroachment and possession of the suit property. According to the plaintiff, the suit property was received by the trust by two separate registered gift deeds dated 13.04.1978 and 26.08.1980. It is the case of the plaintiff that the present appellant dispossessed the plaintiff on 01.11.1986 and, hence, it was necessary for the plaintiff to file the suit for removal of encroachment and possession. The appellant-defendant denied the claim of the plaintiff and pleaded that the erstwhile owner of the property had executed a registered sale-deed in favour of the defendants and defendants had become the owner of the 2 property in view of the sale-deed dated 13.04.1982. Both, the trial and first appellate Court, on an appreciation of the evidence on record, held that the plaintiff had succeeded in proving its ownership over the suit property. The gift deeds dated 13.04.1978 and 26.08.1980 were proved by the plaintiff-trust by examining the attesting witness and the scribe to these documents. Both the Courts rightly held that the appellants-defendants could not have acquired title to the suit property by the registered sale-deed dated 13.04.1982 as the property was already gifted to the plaintiff by registered gift deeds dated 13.04.1978 and 26.08.1980. Even otherwise, by an judgment dated 08.10.2008 in an Appeal against Order filed by the plaintiff, this Court had asked the first appellate Court not to consider the sale-deed dated 13.04.1982 as it was not proved by the appellant in accordance with law. The finding recorded by both the Courts on the encroachment made by the defendants on 31 Feet X 61 Feet of land belonging to the plaintiff is a pure finding of fact based on a proper appreciation of the material evidence on record. The submission made on behalf of the defendants that the two gift deeds executed by the erstwhile owner in favour of the plaintiff on 13.04.1978 and 26.08.1980 were pertaining to the land which was less than 3 one acre and, hence, the gift deeds were hit by the provisions of the Prevention of Fragmentation Act is liable to be rejected as this plea was never raised by the defendants in the written statement or before the trial and the first appellate Court. The submission made by the appellant in this regard relates to an issue of facts & law and this Court would not consider the same in the absence of any plea to that effect in the written statement. Since the findings recorded by both the Courts are based on a proper appreciation of the material evidence on record, the second appeal is liable to be dismissed. Hence, the same is dismissed with no order as to costs. JUDGE APTE