1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No.534/2010 ( Kisan s/o Sadashiv Ghate ..Vs.. The State of Maharashtra, through Collector & others ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ms Vinita V. Tiwari, Adv. H/f. Mr. N.S. Bhattad, Adv. for appellant. CORAM : S.B. DESHMUKH J. DATE : 8.4.2011 1. Heard Ms Vinita V. Tiwari, learned Advocate instructed by Mr. N.S. Bhattad, Advocate for appellant. 2. Appellant before this Court in this second appeal was plaintiff before learned Civil Judge Senior Division, Khamgaon, District Buldhana in Regular Civil Suit No.183/1997 which was filed against the present respondents for declaration and permanent injunction. The prayer sought by the plaintiff – appellant, owner of the suit property, i.e. claiming an injunction against the defendants thereby restraining them from taking possession of the suit property is the subject matter of this appeal. The suit property is situated at village Sangrampur, Taluka Sangrampur, District 2 Buldhana. On issuance of suit summons, the defendants appeared and filed their written statement. Trial Court after considering the rival contentions of the parties framed the issued at Exh.47. The issues are incorporated in para 5 of the judgment. The Trial Court after considering the evidence, recorded findings on all issues simultaneously. The Trial Court recorded finding that land has been acquired by the defendants and award is passed offering compensation. The Trial Court on this backdrop of the material on record dismissed the suit with costs on 18th of August 2003. 3. The judgment and decree passed in R.C.S. No.183/1997, was subjected to an appeal by the plaintiff under the provisions of the Act of 1894. It was registered as Regular Civil Appeal No.43/2003. This appeal, after hearing the parties came to be dismissed by the learned Ad-hoc district Judge-1 Khamgaon on 10th of July 2010. The point in the said judgment is subject matter of this second appeal. 4. Learned Advocate appearing for the plaintiff – appellant submits that possession of the land was not taken over by the Special Land Acquisition Officer and the possession is still with the plaintiff – appellant. It is also contended on behalf of the plaintiff – appellant that 3 opportunity of cross examining the witnesses examined on behalf of the defendants – respondents was not made available by the Trial Court. On behalf of the plaintiff – appellant two applications were filed i.e. (1) application under Order 41 Rule 27 and (2) application under Order 41 Rule 3 of the Civil Procedure Code. The grievance of the plaintiff – appellant is that the said applications were not properly considered by the first appellate Court. 5. Learned Advocate appearing for the plaintiff – appellant fairly concedes that the award has been passed by the defendant no.2. The status of the defendants is relevant. Defendant no.1 – respondent is the State, defendant - respondent no.2 is the Special Land Acquisition Officer and respondent no.3 is the acquiring body – M.I.D.C. Admittedly, the acquisition of the land was for public purpose i.e. for setting up M.I.D.C. area. The procedure for acquiring the land under the provisions of the M.I.D.C. Act had been gone into. The scheme of the M.I.D.C. Act is similar to the scheme of the Land Acquisition Act, 1894. The claim of the plaintiff – appellant that possession was not taken over from the plaintiff – appellant by the defendants – respondents was properly considered by the Courts below. In para 19 of the judgment of the First Appellate Court it has been specifically 4 held that the possession of the suit property had been taken over by the defendants – respondents. Plaintiff – appellant had lost ownership and possession of the suit property. Now property stands vested with the defendants – respondents. I have gone through the submissions of the plaintiff – appellant as well as the evidence, oral and documentary, brought on record. 6. Contention raised on behalf of the plaintiff – appellant that possession was not taken over by the defendants – respondents cannot be accepted. Findings of fact has been recorded finally by the Trial Court and had been concurred with by the first appellate Court. I have given due consideration to the submissions of the learned Advocate for the plaintiff – appellant in the case in hand. Second appeal is to be considered by this Court within the parameters of Section 100 of the Civil Procedure Code. In my view, this second appeal does not involve any substantial question of law for admission thereof. 7. The learned Advocate for the plaintiff – appellant fairly concedes that the Courts below have recorded finding that compensation to the extent of Rs.57,052/- has been paid to the plaintiff – appellant. 5 This second appeal therefore, stands dismissed. No order as to costs. JUDGE Tambaskar.