1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.417 OF 2005 with CIVIL APPLICATION NO.12447 of 2005. Vithal s/o Rajaram Udhan - APPELLANT VERSUS Ankush s/o Shrimant Bobade - RESPONDENT ***** Mr.SP Deshmukh,Advocate for Appellant; Mr.BA Darak, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 19th April, 2010. PER COURT : 1) Heard both the counsel extensively. 2) The learned Counsel took to the documents, purported to be accepted as additional evidence by way of Civil Application, concerning record of pre-consolidation of the different pieces of the land. 2 3) Regular Civil Suit No.134/1997 was filed by the plaintiff, he lost it. He moved before the learned District Judge, Jalna in Regular Civil Appeal No.71/2001, which he lost and consequently, both the findings are debated in the Second Appeal. 4) The learned Counsel for the appellant would submit, the findings in relation to plaintiff's possession over the property and even to the consolidation of the different pieces of agricultural fields, has been perversely appreciated, resulting in miscarriage and need interference. In order to stress his point, the Counsel submits, by virtue of Section 103 of Civil Procedure Code, the powers of the High Court are not scuttled, the High Court can exercise it as the facts are not properly appreciated. 5) The learned Counsel also took recourse to the Judgment in the matter of Shevantabai 3 Maruti Kalhatkar Vs. Ramu Rakhamaji Kalhatkar & Anr. (1991 (1) Bom.CR 764), to point out that the Competent Authority, under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, having acted in respect of holding of a particular landholder, the Civil Court should not upset the same on the ground that it was a fragment and prohibited under Section 8 of the said Act. The Apex Court observed, Civil Court had no jurisdiction to go behind the decision of the competent authority. At this stage, it is clarified, the judgment of the Apex Court will not be applicable to the facts of the present case. 6) The controversy in condensed form needs to be seen. The plaintiff allegedly came in possession of 61 R. of the property by virtue of sale-deed dated 22.9.1986 executed by Babu Keshav Bobde, specifying the boundaries as under - To the East - Land of Vishwanath Sahebrao To the West - Pasture land (Gairan) To the South - Government Road; 4 To the North - Land of Kishan Keshavrao. Perusal of this sale-deed demonstrate, the plaintiff cannot travel beyond the four boundaries specified hereinabove. Curiously, in the Plaint, four boundaries do not match to the recitals in the sale-deed. The controversy more leans to the boundary concerning southern side as the sale-deed describes it to be a road while the plaintiff asserts in the Plaint that at the southern side also he has land of Gut No.398. This is unimaginable. He, having restricted the land from south up to road, cannot be permitted to claim other’s land. That too by a suit simplicitor injunction. The plaintiff could not satisfy as to where the southen side road has gone, which was in existence and as reflected in the sale-deed dated 22.9.1986, when he refers to the southern side in the plaint of his owner’s property. This explanation speaks volumes against the plaintiff. 5 7) The learned Counsel took recourse to the pre-consolidation record and the consolidation of different fragments from 1973 and consolidation of Babu for Gut No.398 to be 95 R. There may not be controversy to this eventuality. The unanswered controversy more surfaced to the acquisition of 25 R. or 33 R. of the property for the road. The record indicate that the property was acquired prior to the plaintiff’s coming into picture as the Award is of 1976 while the plaintiff, as stated earlier, was figured in 1986. The weird submission of the plaintiff that from his purchased land of 61 R., 25 R. was acquired, could not be jacked with any cogent and acceptable evidence. Both the Courts did not commit any mistake in negativing the contention of the plaintiff about his entitlement to stake perpetual injunction. There was no evidence worth acceptable, to plaintiffs portion beyond the Government road. 8) The plaintiff’s remedy to get his land 6 measured vis-a-vis land of the defendant is not scuttled and, if the law permits, the plaintiff is at liberty to take any other permissible legal recourse. 9) Second Appeal is sans merit it is dismissed with CA. (K.U.CHANDIWAL) JUDGE bdv/sa417.05