1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.417 OF 2008 Ashok s/o Rambhau Adhav, age: 43 years, Occ: Agri., R/o Kharat Adgaon, Tq.Majalgaon, District Beed. Appellant Versus 1 Keshav s/o Nivruti Adhav, age: 63 years, Occ: Agriculture, R/o Kharat Adgaon, Tq.Majalgaon, District Beed. 2 Sahebrao s/o Nivruti Adhav, age: 60 years, Occ: Agriculture, R/o Kharat Adgaon, Tq.Majalgaon, District Beed. 3 Gangaram s/o Nivruti Adhav, age: 38 years, Occ: Agriculture, R/o Kharat Adgaon, Tq.Majalgaon, District Beed. 4 Baliram s/o Narhari Adhav, age: 28 years, Occ: Agri., R/o as above. 5 Anna Narhari Adhav, age: 22 years, Occ: Agril., R/o as above. Respondents WITH SECOND APPEAL NO.418 OF 2008 Ashok s/o Rambhau Adhav, age: 43 years, Occ: Agri., R/o Kharat Adgaon, Tq.Majalgaon, District Beed. Appellant Versus 2 1 Keshav s/o Nivruti Adhav, age: 63 years, Occ: Agriculture, R/o Kharat Adgaon, Tq.Majalgaon, District Beed. 2 Sahebrao s/o Nivruti Adhav, age: 60 years, Occ: Agriculture, R/o Kharat Adgaon, Tq.Majalgaon, District Beed. 3 Gangaram s/o Nivruti Adhav, age: 38 years, Occ: Agriculture, R/o Kharat Adgaon, Tq.Majalgaon, District Beed. 4 Baliram s/o Narhari Adhav, age: 28 years, Occ: Agri., R/o as above. 5 Anna Narhari Adhav, age: 22 years, Occ: Agril., R/o as above. Respondents Mr.K.M.Babhulgaonkar, advocate for the appellant. Mr.M.B.Bharaswadkar, advocate for Respondents No.1 to 4. CORAM: R.M.BORDE, J. DATE : 14th October,2009. P.C.: 1 Appellant in Second Appeal No.418/2008 presented Regular Civil Suit No.117/93 seeking relief of possession of encroached area to the extent of 8 gunthas out of land Block No.174 from defendants. Plaintiff claims that he is owner of land Block No.174 admeasuring 1 hectare 22 ares, which is his ancestral property. Defendants have no right, title or entitlement in respect of the property possessed by the plaintiff. However, defendants are owners of land bearing Block No.172 adjacent to the land belonging to plaintiff. Defendants have encroached upon an area to the 3 extent of 8 gunthas belonging to the plaintiff. As such, plaintiff claims recovery of possession of encroached portion. 2 Defendants have controverted the case put up by the plaintiff by denying all adverse contentions. It is contended by the defendants that they have purchased an area to the extent of 7 acres 29 gunthas from their predecessor-in-title. Before effecting purchase of the property i.e. land Block No.172, they were possessing the same as tenants. 3 Considering the contentions raised by the rival parties and after scrutinising evidence, the trial Court came to the conclusion that the plaintiff has failed to establish his case. Plaintiff preferred an appeal raising exception to the judgment passed by the trial Court, being Regular Civil Appeal No.18/2004, which came to be heard and disposed of by Additional District Judge, Majalgaon, who was pleased to dismiss the same. 4 Respondents in Second Appeal No.417/2008 presented suit bearing R.C.S. No.1/93 claiming decree of perpetual injunction against plaintiff in R.C.S. No.117/93 contending that the defendant is trying to interfere in his possession over suit portion i.e. 7 acres and 29 gunthas out of land G.No.172. The defence raised in the said suit is identical to the contentions raised in the plaint in R.C.S. No.117/93. Suit presented by Respondents (in S.A. No.417/2008) came to be decreed. 5 I have perused the judgments delivered by both the Courts 4 below. It transpires on perusal of the judgments that before implementation of scheme of consolidation, appellant (plaintiff in R.C.S. No.117/93) was shown to be holder of an area to the extent of 1 hectare 3 ares and the 7/12 extracts demonstrated possession of the plaintiff over that much area. However, it appears that after implementation of consolidation scheme, excess area is shown to have been possessed by the plaintiff (in R.C.S. No.117/93) i.e. 1 hectare 22 ares. Thus, it appears that after preparation of scheme of consolidation, appellant, in both the appeals, is shown to be holder of excess area. Both the Courts below have considered the evidence led by the parties from this perspective and recorded a finding that the plaintiff has not substantiated his case in respect of his entitlement to an area of 1 hectare 22 ares. The plaintiff has failed to establish that defendants in R.C.S. No.117/93 have encroached upon the area belonging to the plaintiff. On the contrary, respondents have established the case in respect of their ownership over an area as claimed by them. Both the Courts below have recorded findings of fact based on proper appreciation of evidence led by the parties. In exercise of powers under Section 100 of the Code of Civil Procedure, findings of facts recorded by the Courts below need not be interfered. No substantial question of law arises for consideration in the appeal. 6 Both the Appeals are, therefore, dismissed. (R.M.BORDE) JUDGE ******* adb/sa41708