1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.65 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 22.03.2011. 1. Heard. 2. This is defendant's Second Appeal. The plaintiffs had filed suit for possession of an encroached area. The trial Court decreed the suit holding that the defendant has encroached to the extent of 50 ares of the land of the plaintiffs and directed the defendant to deliver vacant possession of the said 50 ares land. The claim of the plaintiffs in respect of damages was dismissed. The defendant preferred an appeal. The appellate Court dismissed the appeal, confirming the judgment and decree passed by the trial Court. The defendant has assailed the 2 said judgment in the present Second Appeal. 3. Mr.Pawar, learned counsel for the appellant strenuously contended that the Civil Court did not have jurisdiction to enter into the dispute regarding the scheme of the Consolidation in view of Section 36-A of Bombay Prevention of Fragmentation and Consolidation of Holdings Act. For the said purpose, the learned counsel relied on the judgment of the Apex Court in a case of "Shevantabai Maruti Kalhatkar Vs. Ramu Rakhamaji Kalhatkar and another" reported in AIR 1999 Supreme Court 2628 and the judgment of the learned Single Judge of this Court in a case of "Ashok Yeshwant Dhumal deceased by heirs and legal representatives Vs. Shankar Maruti Dhumal and another" reported 2001(3) Bombay Cases Reporter 27. Mr.Pawar, learned counsel further submitted that the defendant had preferred appeal before the Deputy Director of Land Records in respect of the said consolidation scheme and the same is pending. As such Civil Court did not have 3 jurisdiction even on that count to entertain the suit. The learned counsel further contended that when the Bandhs are intact, it can not be presumed that defendant has encroached the land of the plaintiff. Even no objection was raised by the plaintiff when the well was constructed. No person will construct the well in the land of others. According to Mr.Pawar, learned counsel, the lower appellate Court did not consider the plea raised by the appellant regarding the wrong implementation of the Consolidation scheme on the ground that there is no pleading to that effect. It was also contended by the learned counsel that there is perverse appreciation of evidence. 4. Per contra, Mr.Kulkarni, learned counsel for the Respondents submitted that the case is based on the measurement carried out by the Cadastral Surveyor, who has found encroachment. The validity and correctness of the consolidation proceedings was not the subject matter of the dispute nor the Courts have dilated anything on the same. No flaw was found 4 in the measurement as it was after issuance of notices for measurement of the lands. 5. With the assistance of the learned counsel, I have gone through the judgments passed by the Courts below. The Courts have nowhere dealt with the validity of the Consolidation proceedings. The arguments of Mr.Pawar, learned counsel for the appellant that the jurisdiction of the Civil Court is barred in view of Section 36-A of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, would have been relevant if the Civil Court would have gone into the validity of the Consolidation proceedings. In the present case, that is not the fact. It is not disputed that the plaintiffs are the owners of land bearing Gat No. 867 and the defendant is the owner of land bearing Gat No.866. The Cadastral Surveyor on measurement of both the lands found that the defendant has encroached over an area of 50 ares land of the plaintiffs and at the same time, the plaintiffs have also encroached over an area of 17 ares land of the defendant. The evidence of 5 Cadastral Surveyor was also scanned by both the Courts. On evaluating the evidence on record, more particularly, that of the Cadastral Surveyor, the Court came to the conclusion that it is proved that the defendant has encroached over 50 ares land. When an encroachment has been found and has been accepted by both the Courts then in such circumstances, the defendant can not retain the said land which is legitimately owned by the plaintiffs. The defendant was not precluded from taking up the necessary proceedings regarding the encroachment found over his land made by the plaintiffs. 6. In that light of the matter, the case is based on appreciation of evidence. The view taken by the Courts below is a possible view. The Second Appeal can not be entertained only on the ground that some other view may also be possible. The Second Appeal being sans substantial question of law, is dismissed. 6 However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.22.03.2011. asp/office/sa65.10