IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.114 OF 2001. APPEAL NO.114 OF 2001. APPEAL NO.114 OF 2001. Yeshwant B. Lad (deceased) by his legal heirs: 1A. Smt Laxmibai Yeshwant Lad ...Appellants Versus. Shashikant K. Lad & Ors ...Respondents Shri M.K.Katikar for the Appellants. Shri M.S.Lagu for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. 14th 14th 14th February, 2008. February, 2008. February, 2008. P.C.: P.C.: P.C.: 1. Heard advocate for the appellants. The appellants are the original defendants. The respondents-plaintiffs filed a suit for removal of encroachment. The said suit was decreed by the trial Court. In the appeal, the decree has been confirmed. 2. According to the case of the respondents their father was the owner of land bearing Survey No.33/3-C (Gat No.72) situated at village Kumbhargaon, Taluka Khanapur, District Sangli. According to the respondents-plaintiffs, in lieu of the original holding, their father was allotted Gat No.72 in the consolidation scheme and a certificate under section 24(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 was issued in the name of the respondents’ father. The allegation is that the predecessor of the appellants has encroached upon the : 2 : 2 : 2 : suit land to the extent of 20 Ares. 3. The defence of the predecessor of the appellants was that there was no partition between the father of the respondents and his three brothers till the year 1959. In the year 1959, a partition was effected in which the suit land was allotted to the share of the appellants’ predecessor. It was contended that as a result of the said partition, prior to the coming into force of the consolidation scheme the respondents’ father was holding only a part of the suit land to the extent of 10 gunthas/10 Ares. It is submitted that the remaining 28 Ares was in possession of the appellants’ predecessor pursuant to the partition. It is alleged that before finalising the consolidation scheme notice was not served to the appellants’ predecessor. 4. The courts below have found that the respondents’ father was the owner of the suit lands and the appellants had no right in respect of the suit lands. 5. The submission of the advocate for the appellants is that the admissions of the witness examined by the respondents have been completely ignored by the courts below which show that prior to finalisation of consolidation scheme, the respondents’ : 3 : 3 : 3 : father was in possession of only an area of 10 Ares. He submitted that the alleged encroached portion has been allotted to the original defendant in partition of the year 1959 as evidenced by the deposition of the witnesses examined by the original plaintiffs. He submitted that as the respondents’ father had no title to alleged encroached portion prior to the coming into force of the alleged consolidation scheme, now the respondents cannot claim title. 6. I have carefully considered the submissions. The courts below have found that a certificate under section 24(1) of the said Act of 1947 was issued in respect of the suit land in favour of the respondents’ father. The said certificate has been exhibited on record. The said certificate shows that the suit property was allotted to the respondents’ father. A finding of fact has been recorded on the basis of evidence on record that even prior to the date on which consolidation scheme was finalised, the name of the original defendant never appeared in the revenue record in respect of the suit land. Before the Appellate Court submissions were sought to be made regarding the legality of the consolidation scheme. However, the said submissions have been rightly discarded as a certificate under section 24(1) of the said Act of 1947 was issued by the authorities under the Consolidation Act. The : 4 : 4 : 4 : said certificate is an evidence of title. It is not open for the Civil Court to go into the question of alleged illegality of the consolidation scheme. Considering this aspect, the courts below have found that the respondents-plaintiffs have proved their ownership. Therefore, a decree for removal of encroachment has been passed. 7. I find no error in the concurrent findings of fact recorded by the courts below as the original defendant has never challenged the consolidation scheme by adopting appropriate proceedings. 8. There is no merit in the Second Appeal and the same is dismissed. There will be no orders as to costs. 9. On the prayer made by the advocate for the appellants, decree for possession shall not be executed for a period of four months from today to enable the appellants to take appropriate steps. 10. In view of dismissal of the appeal, Civil Application Nos.200 of 2001 does not survive and the same is rejected. Judge. Judge. Judge.