-1- 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.576 OF 2007 APPEAL NO.576 OF 2007 APPEAL NO.576 OF 2007 Rajaram Laxman Chavan (since deceased through L.R.)& Ors. ...Appellants vs. Narayan Krishna Chavan & Ors. ...Respondents Mr.Sandesh D. Patil for the Appellants CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 28, 2008 : FEBRUARY 28, 2008 : FEBRUARY 28, 2008 P.C.: P.C.: P.C.: 1. The submissions of the learned Advocate for the Appellant were heard on the last date. The Appellants are the original defendants. The Respondents are the original plaintiffs who claimed to be the owners of the land bearing Gat No.318/36. The respondents alleged that the appellants have encroached upon the area of 85 Ares out of the land bearing Gat No.318/36. The trial court decreed the suit and in the Appeal, the decree passed by the trial court has been confirmed by the Appellate court. 2. The submission of the learned Advocate for the Appellants is that in view of sale deed dated 17th November 1943 (Exh.135), the Appellants could not have purchased the area of 8 acres and 24 gunthas in as much as after execution of the said sale deed at Exh.135, the property left in the hands of the vendors of the Respondents was only to the extent of 6 -2- acres and 39 gunthas. His submission is that the sale deed on which the Respondents-plaintiffs are relying upon is the subsequent sale deed at Exh.110. His submission is that if the predecessor in title of the respondents had no title to the extent of 8 acres and 24 gunthas, only on the basis of the entries made in the consolidation scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, the Respondents could not have claimed ownership. He placed reliance on the decision of the learned Single Judge of this court in case of Sidagonda Avagonda Sardar Patil & another vs. Bhimgonda Kadgonda Kushappa Patil [2002 (3) Bombay Cases Reporter page 563]. He submitted that the civil court can always go into the question whether the allottee under the consolidation scheme had a title. 3. I have given careful consideration to the aforesaid submissions. It is not in dispute that under the consolidation scheme, Gat No.318/36 to the extent of 8 acres and 24 gunthas was allotted to the respondents. As of today, there is no challenge by the Appellants to the consolidation scheme. 4. The Respondents examined a surveyor who had measured the property in question and had prepared a map. The map prepared by the surveyor show that the first Appellant had made encroachment to the extent of 78 ares and the second Appellant -3- had encroached to the extent of 7 Ares. 5. In view of the concurrent findings of fact recorded by the courts below, no interference is possible. The decision of the learned Single Judge in case of Sidagonda (supra) will not help the Appellants as the Appellants have not chosen to challenge the orders passed by the Authorities while finalising the consolidation scheme. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. 6. On the prayer made by the Advocate for the Appellants, decree for possession shall not be executed for a period of three months from today. 7. In view of dismissal of the Appeal, Civil Application No.1054 of 2007 does not survive and the same is disposed of. JUDGE JUDGE JUDGE