( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 543 OF 1989 1. Motiram s/o. Narayan Chavan .. Appellants Age. 46 years, Occ. Agri., [Ori.def. Nos. R/o.Panshewadi Tanda,Tq.Kandhar, 3 to 7] Dist. Nanded. 2. Bhimrao s/o. Devala Chavan, Age. 31 years, Occ. Agri., R/o. As above. 3. Gotiram s/o. Ramdhan Pawar, Age. 41 years, Occ. And R/o. As above. 4. Laxuman Sakharam Pawar, Age. 48 years, Occ. And R/o. As above. 5. Durga Lobha Rathod, Age. 62 years, Occ. And R/o. As above. Versus 1. Govinda s/o. Babu Mangnale, .. Respondents Age. 63 years, Occ. Agri [Ori. plaintiff R/o.Panshewadi Tanda, Ta.Kandhar, & def. 1 & 2] Dist. Nanded. 2. Pralhad s/o. Rampuri Age. 50 years, Occ. Service, Constable at Vazzirabad, Police Station, Nanded. ( 2 ) 3. Udhav s/o. Rampuri, Age. 43 years, Occ. Agri., R/o. Pandhewadi Tanda, Tq. Kandhar, Dist. Nanded. Shri H.K. Mundhe, Advocate for the appellants. Shri V.N. Patil h/f. Shri M.V. Deshpande, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 26.06.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original defendant Nos. 3 to 7 being aggrieved by the judgment and decree passed by the learned Civil Judge, Junior Division, Kandhar in Civil Suit No. 99 of 1978, whereby he declared the plaintiff to be owner of the disputed land which is 17 Acres 30 Gunthas land, bearing Survey No.42/B situated at village Panshewadi, Tal. Kandhar and also further restrained the defendants from interfering with the possession of the plaintiff over the disputed land. This judgment was challenged by the present ( 3 ) appellants in Regular Civil Appeal No. 1 of 1982, which came to be dismissed by the II Additional Sessions Judge, Nanded, on 03.03.1989. Being aggrieved thereby this Second Appeal is filed. 2. It is no more disputed that one Kasubai was predecessor in title of respondent No.1 – Govind who was original plaintiff. Rampuri of whom respondent Nos. 2 and 3 are sons was co-owner with Kasubai. It is case of plaintiff/respondent No.1 that Kasubai and Rampuri were owners of equal shares in Survey No.42 and the land of Rampuri was given Survey No. 42/A and land of Kasubai which was purchased by the plaintiff/respondent No.1 was given Survey No.42/B. According to the plaintiff/respondent No.1 both portions of Survey No. 42 were having equal area i.e. 17 Acres 30 Gunthas. It is case of the plaintiff/respondent No.1 that the appellants and respondent Nos. 2 and 3 were unnecessarily disturbing his possession over Survey No. 42/B, which is 17 Acres 30 Guntahs land and therefore he filed suit for declaration and injunction. ( 4 ) 3. The appellants who were original defendant Nos. 3 to 7 came with a case that since land which was in possession of Rampuri was of inferior quality, he was in possession of 24 Acres 2 Gunthas land and remaining land was in possession of Kasubai, which was purchased by the plaintiff/respondent No.1 and plaintiff/respondent No.1 is not entitled to declaration and injunction to the extent of 17 Acres 30 Gunthas land. 4. It is also case of the appellants that Rampuri by sale-deed dated 23.08.1960, copy of which is produced at Exh.59, had sold 10 Acres land to Chandu Lobha and Sitaram Lobha. There is no dispute regarding the sale. It is further case of the appellants that by sale-deed Exh.60 dated 26.04.1974 present appellant purchased 7 Acres 30 Gunthas land from Rampuri. On 05.06.1978 respondent Nos. 2 and 3 sold 8 Acres 31 Gunthas land to the appellants and thus according to the appellants they are owners of 15 Acres 30 Gunthas land by two sale- deeds. 5. Both the Trial Court and the First Appellate ( 5 ) Court have held that the plaintiff is owner of 17 Acres 30 Gunthas land. Rampuri was owner of 17 Acres 30 Gunthas land and there was no land which could have been sold by respondent Nos.2 and 3 to the appellant by sale- deed dated 05.06.1978 and therefore decreed the suit. 6. This Second Appeal is admitted on Ground Nos. 5 to 8 by order dated 18.01.1991. We may sum up the substantial questions of law which are covered by Ground Nos. 5 to 8, as under :- 1. Whether the appellants/plaintiffs proved their ownership and possession over 17 Acres 30 Gunthas land and as such are entitled to declaration and injunction? 2. Whether the appellants are in possession of only 11 Acres 18 Gunthas land as claimed by the appellants? 7. Heard Adv. Shri H.K. Mundhe for the appellant and Adv. Shri V.N. Patil h/f. Adv. Shri M.V. Deshpande for respondent No.1. 8. Adv. Shri Mundhe has placed heavy reliance on map Exh.79, which according to him was prepared at the ( 6 ) time of division of Survey No.42 in about 1972. He also placed reliance on Exh.80, which according to him showed areas of the land in possession of different owners on 29.03.1970. Perusal of map Exh.79 shows that though the map appears to be old one, it does not bear any date. It is titled as “Hisshacha Nakasha” (Map of Hissa) of Survey No.42, Hissa No.1. It is mentioned therein that total acerage was 16 Acres 21 Gunthas, out of which 2 Acres 10 Gunthas was Pot Kharab and remaining was 14 Acres and 11 Gunthas. It may be noted that this document does not bear signature of anyone though it bears stamp of Tahsildar. So far as Exh.80 is concerned, it is Hakkapatrak and Mutation register. The entry is signed putting date 29.03.1970 by the Special District Inspector of Land Records, Parbhani. It is mentioned that as per 7/12 extract Rampuri Mahadeo Puri, Sitaram Lobha and Chandu Lobha were in possession of 17 Acres 30 Gunthas land. However, in nature of rights column, it is mentioned that Rampuri was in possession of 16 Acres 11 Gunthas, Chandu Lobha was in possession of 7 Acres 21 Gunthas land and Baba Govinda was in possession of 11 Acres 17 Gunthas land. It is also ( 7 ) mentioned that thus area are mentioned as per Namuna No. 12 (Form No.12). It is not mentioned when the measurements were carried out. 9. On the other hand, the learned advocate for the appellant Shri Patil has taken me through entire revenue record and argued that Pahani Patrak of 1956-60 shows that the plaintiff was owner of 17 Acres 30 Gunthas land and Rampuri was owner of 17 Acres 30 Gunthas land and same possession continued to be shown in 7/12 extracts even after 1960. Moreover, he said that the admissions of Rampuri, the vendor of the appellant themselves show that after he sold portion of land on 26.04.1974 by sale-deed (Exh.60), no more land remained with him to be sold and therefore there was no occasion for respondent Nos.2 and 3 to sell the appellants 8 Acres on 05.06.1978. At Exh.59 there is copy of sale-deed executed by Rampuri in favour of Chandu Lobha and Sitaram Lobha. Therein, Rampuri has specifically stated that he was owner and possessor of Survey No.42/A, which was admeasuring 17 Acres 30 Gunthas land. By the sale- deed he sold 10 Acres land. Therein as abuttal of sold ( 8 ) land on Southern portion it is stated that there is remaining land of Rampuri. The sale-deed Exh.60 is the sale-deed executed by Rampuri in favour of present appellants. It is dated 17.04.1974. He mentioned therein that he was selling 7 Acres 30 Gunthas land belonging to him out of Survey No.42/A. The abattals are as follows :- On East - Land of Govind On West - Land of Bhimrao Jaywanta and Chintaman Pandhari On South - Land of Chandu Lobha On North - Land of Hussain Arjuna . So, no more land remained with Rampuri after second sale. Thus we find admissions of Rampuri the vendor of the appellants way back in 1960 and 1974 that he was original owner of 17 Acres and 30 Gunthas land. First he sold 10 Acres land. Then he sold remaining 7 Acres 30 Gunthas land by Exh.70. 10. Considering the judgments of the Courts below it cannot be said that the view taken by the Trial Court and the First Appellate Court in anyway is wrong and not ( 9 ) based on evidence. So, in the circumstances, this appeal must fail. Hence, the appeal is dismissed. Parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUN09/sa543.89