1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1209 OF 2005 with CA NO.7697/2005. Laxman s/o Dattatraya Tompe - APPELLANT VERSUS Dashrath Namdeo Eakar and Ors. - RESPONDENTS ***** Mr.SS Choudhari,Advocate for Appellant; Mr.BS Kudale, Advocate for Respondent No.1. ----- CORAM : K.U.CHANDIWAL, J. DATE : 30th March, 2010. PER COURT : 1) Heard learned Counsel extensively. 2) The dismissal of RCS No.123/1996 by learned Civil Judge, Senior Division, Hingoli, was carried by the plaintiffs before the learned Ad hoc Additional District Judge, Hingoli, in RCA No.54/2000, where the learned Additional District Judge modified the decree, same is questioned by 2 the aggrieved defendant no.1 -Laxman. 3) The chequered history, as projected in the record, illustrates that Vithal Maroti Phise was owner of land Survey No.20/1 and at the relevant time, it was 14 acres and 33 gts. land (corresponding to 5 hectares and 97 R.). Under an Indenture dated 18.9.1974, entire 5 hectares and 97 R. land was sold by said Vithal to Brahmaji Tukaram Karhale and two sons, Vishwanath and Mahadu. Vishwanath, by virtue of sale-deed dated 6.6.1990, sold 3 hectares and 43 R. land to the plaintiffs, specifying the boundaries thereof. Mahadji sold 2 hectares and 10 R. land to Gajanan on 28.4.1994. It consequently appeared that there was no salable area left over for Vithal to sell in favour of Laxman, the defendant no.1 (appellant in the second appeal). 4) Mr.Choudhari would canvass, the Courts have erred in observing that Vithal was owner of 5 hectares and 97 R. land only as Vithal was 3 indeed owner of 6 hectares and 48 R. land. This submission of the learned Counsel does not find place, supported with any document to substantiate. It was in the Consolidation proceedings by amalgamation, 90 R. of the adjoining land was added, which has been subjected to a challenge before the Commissioner under the Consolidation Act and there operates a stay. In spite of this position, on 9.5.1996, defendant no.2 – Vithal, apparently and surreptitiously sold 90 R. of the land to the defendant no.1 - Laxman. Such sale is in itself a different controversy to be faced by the defendant interse with deft.no.2. The fact remains, by virtue of such sale-deed, the defendants are not entitled in law to cause interference in the land purchased by the plaintiffs on 6.6.1990, admeasuring 3 hectares and 43 R. From Vishwanath Brahmaji. Four boundaries of the land sold by Vishwanath to the plaintiff are specified in the pleadings. The plaintiff is not claiming anything more than his 4 land and enjoying for the same. The first Appellate Court rightly injuncted the defendants from interfering into possession of the plaintiff. The Second Appeal, as Mr.Choudhari would say that it raises a substantial question of law, to the extent of 90 R. of land from Gut No.101, would not be so. Second Appeal with CA dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/sa1209.05