1 SA 1691.2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1691 OF 2005 Sandusingh S/o Dalsingh Kakarwal & Oths. .... APPELLANTS V E R S U S Mamlabai W/o Khushalsing Dusinge & Oths. .... RESPONDENTS Mr.A.M.Dabir ,Advocate for the appellant. Mr.V.S.Kadam, Advocate holding for Mr. R.N.Dhorde, Advocate for respondent no. 1& 2. CORAM : S.V. GANGAPURWALA, J. DATE : 14/03/2011 ORAL ORDER : 1. Heard learned counsel for the respective parties. 2. This is defendant’s Second Appeal. The plaintiff had filed Suit for declaration and injunction in respect of the suit property bearing G.No. 877 admeasuring 11 Acres 26 gunthas. The trial Court dismissed the Suit. The plaintiff preferred Appeal. The appellate Court allowed the Appeal and decreed the Suit of the plaintiff restraining the present respondents from disturbing the possession of the plaintiffs as detailed in the order. The defendant has assailed the said Judgment in the present Second Appeal. 3. Mr. A.M.Dabir, the learned counsel for the appellant submits 2 SA 1691.2005 that the vendor of the plaintiff did not have the property to the extent of 11 Acres 26 gunthas so as to pass the title to the plaintiff to that extent. The vendors of the plaintiff were owners only to the extent of 8 Acres 5 gunthas. The lower appellate Court has not considered this fact and thereby has arrived at erroneous conclusion. According to the learned counsel, the Court below could not have relied on the case of the defendant for proving the case of the plaintiff. Even otherwise the same would not be relevant as the plaintiff has failed to substantiate its case just because in consolidation record the mistake is committed. That would not give title to the vendor of the plaintiff to part with more property. 4. Per contra, Mr. V.S.Kadam, the learned counsel holding for Mr. R.N.Dhorde, the learned counsel for the respondent no. 1 and 2 submits that the land G.No. 877 is admeasuring 11 Acres 26 gunthas, which was owned by Dhansing and Mansing. The plaintiffs vide three ( 3 ) separate sale deeds have purchased the said property. The defendant no. 1 purchased only one ( 1 ) acre of land and in compromise he allotted 2 Acres 20 gunthas to defendant no. 5. Taking dis-advantage of this fact, the defendants are interfering in the possession of the plaintiff. According to the learned counsel the lower appellate Court has properly scanned the record and arrived at just conclusion. 3 SA 1691.2005 5. With the assistance of the learned counsel, I have gone through the Judgments delivered by both the Courts. 6. Land G.No. 877, as per record, admeasures 11 Acres 26 gunthas, which stood in the name of Dhansing and Mansing. The plaintiffs vide sale deeds Exhs. 44,46 and 47 have purchased the said property. The consolidation scheme has become final. The same has not been challenged by any party at any material point of time. In light of the same, it has to be held that the plaintiffs’ vendors were owners to the extent of 11 Acres 26 gunthas and the said property has been transferred to the plaintiff. More over, defendant no. 1 has purchased only one ( 1 ) Acre of land. In that light of the matter, the defendant no. 1 could not have transferred by way of compromise an area of 2 Acres 20 gunthas to defendant no. 5. All these factors have been considered by the Court below and have arrived at plausible conclusion. 7. The Second Appeal being being sans substantial question of law is dismissed, however with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 1691.2005 4 SA 1691.2005