1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 349 OF 2008 Dhondiba s/o Rama Chavan .. APPELLANT VERSUS Bapurao s/o Bhaurao Chavan .. RESPONDENT WITH SECOND APPEAL NO. 354 OF 2008 Dhondiba s/o Rama Chavan .. APPELLANT VERSUS Mathurabai w/o Madhav Chavan ( deceased ) .. RESPONDENTS Mr. S.S. Choudhari, Advocate for the appellant. Mr. A.R. Kale, Advocate holding for Mr. S.V. Natu, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 9 th FEBRUARY, 2010. PER COURT : 1 These appeals are presented by the original defendant raising 2 exception to the judgment and decree passed in Regular Civil Appeal nos. 83/2003 and 82/2003 decided by District Judge – 1, Osmanabad on 5-3-2008. The first appellate court while allowing the appeal partly directed delivery of possession of 21 R land from gat no. 584 to plaintiffs in Regular Civil Suit no. 379/1988 and 24 R land from gat no. 806 to the plaintiff in Regular Civil Suit no. 561/1988. Decree passed by the trial court in respect of grant of perpetual injunction has been set aside by the first appellate court. 2 There were two suits instituted by two cousin brothers. One Bapurao s/o Bhaurao Chavan instituted Regular Civil Suit no. 561/1988 claiming a decree of perpetual injunction or in the alternative, seeking possession of the area to the extent of 24 R land from the defendant / appellant herein whereas another brother by name Maruti s/o Madhav Chavan instituted Regular Civil Suit no. 379/1988 claiming identical relief in respect of an area to the extent of 21 R land. One Genu was the original owner. He had three sons by name Bhau, Ram and Mahadu @ Madhav. Bapurao s/o Bhaurao instituted one suit whereas another suit is instituted by Maruti s/o Madhav and, son of Rama by name Dhondiba is common defendant in both the suits. It appears that Gena owned and possessed 3 H and 49 R land which was distributed amongst three brothers equally and each brother got 3 approximately 90 R land. Dispute started as a result of implementation of the scheme of consolidation in the year 1978 wherein heir of Rama i.e. appellant herein is shown to have been allotted an area to the extent of 1 H and 32 R whereas the holding of other brothers was reduced to approximately 17 R. The brothers who were prejudicially affected because of the implementation of the consolidation scheme again approached the consolidation authorities praying for ratification of the error. It appears that in the year 1982, the error is ratified and the holdings of each brother has been corrected. Defendant Dhondiba / appellant herein however, in pursuance to the change effected in 1978 was holding an area to the extent of 1 H and 32 R which is in excess of the entitlement of the other brothers i.e. Bapurao and Maruti. Plaintiffs in both the suits therefore claim recovery of possession of excess area from defendant Dhondiba. Claim raised by the plaintiffs has been controverted by defendant by filing written statement. According to defendant / appellant herein, implementation of the scheme of consolidation which is finalised in pursuance to the appeal tendered by the original plaintiffs is not acceptable. It is contended that he is in possession of the land as per the previous arrangements and the plaintiffs are not entitled to share equal area. 4 3 Trial court after considering rival contentions granted decree of perpetual injunction while deciding Regular Civil Suit no. 379/1988 whereas while disposing of Regular Civil Suit no. 561/1988, the trial court restrained the defendant / appellant herein from interfering possession of the plaintiff over the suit land. However, in the same breath, trial court also directed to handover possession of the disputed area to the plaintiff. Appellant / original defendant carried two different appeals raising challenge to the judgment and decree passed by the trial court and those were taken up for consideration by the District Judge – 1, Osmanabad who was pleased to allow the same partly. The first appellate court granted decree in respect of recovery of possession in both the suits. 4 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. It is to be noted that the holdings of deceased Genu appears to have been equally divided amongst his three sons Bapu, Rama and Mahadu and they remained in possession in pursuance to such allotment of shares. Some error crept in while implementing the scheme in the year 1978. Statement of Rama i.e. father of defendant / appellant herein recorded on 13-12-1978 during enquiry under Consolidation Act goes to show tht he was previously 5 possessing an area to the extent of 90 R whereas after implementation of the scheme of consolidation in the year 1978, his holding is shown to have been increased to 1 H and 32 R whereas holding of other two brothers was reduced. In view of the change affected during implementation of the scheme of consolidation during the year 1978, original plaintiffs presented appeal to the consolidation authorities and it appears that after due enquiry, the error that crept in was corrected in the year 1982. In view of the corrected scheme, the holding of all the three brothers is shown equal approximately. It appears on perusal of the record that after demise of Genu, all the three brothers were possessing holding equal in proportion, however, some error crept in while implementing the scheme in the year 1978 and the said mistake was corrected in the year 1982 when the consolidation authority directed correction in the scheme. 5 Considering the documentary evidence placed on record, I am of the opinion that the first appellate court has correctly appreciated the evidence; oral as well as documentary, and reached conclusion that the plaintiffs are entitled to secure recovery of possession of land which is possessed in excess of his entitlement by defendant Dhondiba. Order passed by the first appellate court is also in consonance with the old record 6 which was in existence prior to implementation of the scheme of consolidation in the year 1978. Considering the reasons recorded by the first appellate court, I do not find that the appellate court has committed any error in modifying the judgment and decree passed by the trial court. No substantial question of law arises for consideration in both the appeals. Appeals therefore stand dismissed summarily. 6 In view of dismissal of appeals, pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa349.08.odt