1 SA212/11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 212 OF 2011 Gahininath s/o Honaji Damale, Age 55 years, Occupation Agriculture, Resident of Dule – Chandgaon, Taluka Pathardi, District Ahmednagar Appellant V E R S U S Dropadabai Balbhim Garje, Age 65 years, Occupation Agriculture,Resident of Dule – Chandgaon, Taluka Pathardi, District Ahmednagar Respondent Shri S.P. Deshmukh, Advocate, instructed by Shri V.S. Badakh, Advocate for the appellant Shri V.S. Bedre, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 20th September, 2011 PER COURT : 1. This second appeal is challenging the Judgment and order passed by the learned District Judge – 6, Ahmednagar, in Regular Civil Appeal No. 120 of 2007. 2. The respondent was the original plaintiff, who filed the suit for recovery of possession of 15 guntha land as encroachment made by the appellant / defendant. Initially he depended on certain measurements made at his request by the concerned authorities. The appellant / defendant since beginning contended that he had not made any encroachment. However, it is common ground that in 1989-90, scheme under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 was implemented in this village. Prior to implementation of the scheme, the land of the respondent / plaintiff bore 2 SA212/11 land survey No. 97/5/B, whereas the appellant / defendant’s land bore survey No. 97/5/A. The area as per the record of the land survey No. 97/5/B was 1 Hectare 82 Are, whereas the area of land survey No. 97/5/A was 97 Are. After implementation of the scheme, the lands were re-numbered as ‘Gat’. The respondent’s land was re-numbered as Gat No. 459, but the area of this Gat is shown to be 1 Hectare 15 Are, where the land of the appellant / defendant was re-numbered as Gat No. 460 and the area of this Gat is shown to be 1 Hectare 62 Are. Apparently, during the consolidation, the area of newly formed Gats changed, but the appellant / defendant did not make grievance about it for quite sometime. As said above, before filing of the suit, the respondent / plaintiff got his land Gat No. 459 measured and the measurement showed that his land was encroached by the appellant / defendant to the extent of 14 guntha, so he filed this suit. 3. The learned Judge of the trial Court rejected the evidence of the resondent / plaintiff saying that at the time of measurement of his land, the measurements of other lands were not made and the evidence was insufficient to prove encroachment etc. The respondent / plaintiff went in appeal and the learned Judge of the first appeal Court directed the authorities to make measurements of all the lands around the respondent / plaintiff’s land. Accordingly, after giving notice to the parties, the measurements were taken and a map was prepared. This map is prepared apparently on the basis of permanent boundary marks of Gat. These permanent marks are shown on the map. The map further shows that the appellant / defendant had made encroachment to the extent of 5 guntha towards north of his boundary in the land of respondent / plaintiff. The measurement report also shows that at the border of the encroached area, 3 SA212/11 several trees are planted in line probably to indicate that this line is the boundary between the lands in question. But, the surveyor could show with the help of permanent marks of Gat boundaries that there had been encroachment on the respondent / plaintiff’s land at the hands of appellant / defendant. In view of this, the learned Judge of the first appeal Court partly decreed the suit and directed removal of encroachment to the extent of 5 guntha. 4. During pendency of the litigation, on the other hand, the appellant / defendant approached the consolidation authorities and made grievance that they could not have reduced his area from 1 Hectare 82 Are to 1 Hectare 62 Are. I am now told that his representation was accepted by the authorities and they accepted that they had committed an error etc. But, this part of the case of the appellant / defendant never came before the Courts below, and therefore, it is alien to this case. The learned counsel appearing for the appellant / defendant urged the Court to take into account the subsequent development that had taken place at the consolidation authorities’ end. I am afraid, since this evidence was not taken into account by the Courts below, I would also refrain from appreciating it. In any case, what happened subsequent to filing of the suit, would be beyond the scope of inquiry. The suit was filed in 1994 when the lands of the parties were already re-numbered as Gat Nos. 459 and 460. The lands were demarcated with permanent marks, and therefore, the parties ought to be in possession of the lands demarcated by permanent marks denoting the boundaries of Gat. The Courts below made exhaustive effort to find out as to whether the land of the respondent / plaintiff is encroached, and it was found that it was certainly encroached by the appellant / defendant on the southern side. The record, after measurements, further shows that the land 4 SA212/11 of the respondent / plaintiff was also encroached on the northern side by owners of lands Gat Nos. 456, 457 and 458. Since the respondent / plaintiff had no grievance against the encroachment of his land on the northern side, the learned Judge of the first appeal Court rightly ignored this anomaly and decreed the suit to the extent of 5 guntha against the appellant / defendant. 5. The appellant / defendant, in my view, would not be prejudiced with this impugned Judgment and decree, because he has ultimately succeeded in convincing the consolidation authorities of their error. They might come to the spot and fix new boundary marks to enlarge the area of the appellant’s land Gat No. 460 to make it measure 1 Hectare 82 Area. This Judgment and decree of this litigation thus might not cause any prejudice to the appellant / defendant, if he takes steps for not only correcting the record created by the consolidation authorities but also to restore the land which he had lost. In view of this, there is no substantial question of law in this appeal. With this, second appeal stands dismissed. In view of dismissal of the second appeal, pending Civil Application No. 6021 of 2011 stands disposed of. ( A.V. NIRGUDE, J. ) SRM/sa/212/11/20/9/11ok