1 S.A. No.394.2002 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No.394 OF 2002 Syed Riyasat Hussain S/o Ghor Ali through L.Rs. .. APPELLANTS VERSUS Krishi Utpanna Bazar Samiti, Sillod & others ...RESPONDENTS ... Shri. R.F. Totla, Advocate for the appellants Shri Suryawanshi, Advocate for respondent No. 1 ... CORAM : S.V. GANGAPURWALA, J. DATE : 13th December, 2010. PER COURT : This is plaintiffs Second Appeal. The plaintiff had filed a suit for declaration of ownership and injunction. The Trial Court partly decreed the suit to the extent of plaintiff No. 3. Plaintiff preferred an appeal. The appellate Court also dismissed the appeal, so also allowed the counter claim filed by the defendant to the extent of decree passed in favour of plaintiff 2 S.A. No.394.2002 No. 3. The appellate Court as such dismissed the suit in toto. The plaintiff has assailed the said Judgment and Decree in the present Second Appeal. 2. Shri Totla, learned Counsel for the appellant contended that the sale-deed in favour of the present plaintiff NO. 3 is executed on 18-04-1967 and the acquisition proceedings are of the year 1971. As such, prior to acquisition the plaintiffs were owners of the suit property. No notice of acquisition was received by the plaintiff, suggesting that land of the plaintiff was not acquired. In such circumstances, there was no impediment for Courts to come to the conclusion that the plaintiff is the owner and possessor of the suit land. The learned Counsel further contended that the total area of land Survey No. 81/1 is 14 Acres 16 Gunthas, out of that 6 Acres and 11 Guntha of land was acquired for Ginning and Pressing, whereas, 7 Acres and 20 Guntha land was acquired for the purpose of Agricultural Produce Market Committee. As such, still land of 25 Guntha remain and plaintiff No. 1 was owner and possessor of 22-3/4 Guntha and 3 S.A. No.394.2002 plaintiff No. 3 of 2-1/4 Guntha, as such even taking into account the total area of Survey No. 81/1, it is clear that the land is not acquired and the land of plaintiff is left out. This is further corroborated and substantiated from the fact that the no acquisition proceedings were held and also no notice were issued to the present plaintiff. This aspect has not been considered by the Courts below and they have arrived at perverse conclusion. According to the learned Counsel, even the respondents have filed a suit for possession against the appellant and injunction should have been granted in favour of the plaintiff. 3. Per contra, Shri Suryawanshi, learned Counsel for the respondent No. 1 submitted that the plaintiff is trying to take advantage of the discrepancy in the area. The Award has been passed. It has became final. The boundaries in the Award would show that no part of land Survey No. 81/1 is left out from acquisition. The boundaries would prevail over area and even the defendants have filed suit for possession against 4 S.A. No.394.2002 the plaintiff and the same is subjudiced. 4. With the assistance of learned Counsel for the respective parties I have gone through the judgments delivered by both the Courts below. The fact that land Survey No. 81/1 has been acquired is not disputed. Only the area of the land acquired is disputed. Going by the mathematical calculations, the arguments of Shri Totala appears to be correct. But it is a settled law that whenever there is dispute between the area and boundaries, the boundaries shall prevail. It has been observed by both the Courts that Award shows the boundaries and the land which has been acquired. If some part of land Survey No. 81/1 was left out from acquisition, then one side boundry would have been remaining the land of Survey No. 81/1, but that is not so. The Courts below have discussed about the boundaries in detail and have come to the conclusion that no part was remaining from Survey No. 81/1 to be acquired. 5. On evaluation of the evidence, both 5 S.A. No.394.2002 the Courts below have come to a probable conclusion and no interference is required for. Moreover, the fact that the respondents have filed suit for possession shows that the respondents adhered the due process of law. In that light of the matter, the plaintiff / appellant is not entitled for the relief. As such, the Second Appeal being sans substantial question of law is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA] JUDGE SDM*