1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 297 OF 1998 1. Bhanudas s/o Nathu Gange, Age: 50 years, Occ: Agri., R/o. Gangewadi, U/v Beedsangvi, Tal. Ashti, Dist. Beed. 2. Sarjerao s/o Vithoba Gange, Age: 36 years, Occupation and R/o. As above. ..Appellants Versus 1. Bajirao s/o Daji Gange, Age: 65 years, Occ: Agri., R/o. Gangewadi, U/v Beedsangvi, Tal. Ashti, Dist. Beed. 2. Ramkisan s/o Daji Gange, Age: 60 years, Occupation and R/o. As above. 3. Mohan s/o Daji Gange, Age: 54 years, Occupation and R/o. As above. 4. Parmeshwar s/o Jagannathrao Gange, Age: 36 years, Occupation and R/o. As above. 5. Murlidhar s/o Bajirao Gange, Age: 37 years, Occupation and R/o. As above. 6. Kerba s/o Ramkisan Gange, Age: 35 years, Occupation and R/o. As above. 7. Devidas s/o Mohan Gange, 2 Age: 34 years, Occupation and R/o. As above. 8. Rohidas s/o Vyanka Narode, Age: 42 years, Occupation and R/o. As above... Respondents ... Mr. A.G. Godhamgaonkar, Advocate for appellants. Mr. D.N. Suryawanshi, Advocate for respondents. ... CORAM : N.D. DESHPANDE, J. RESERVED ON : 10-12-2009 PRONOUNCED ON: 19-12-2009 JUDGMENT : The present Second Appeal is directed against the impugned judgment and decree dated 24-06-1998 passed by the learned District Judge, Beed in R.C.A. No. 137/1991, so also, the judgment and decree dated 12-09-1991 passed by the learned Civil Judge, Junior Division, Ashti, District Beed, thereby dismissing the plaintiffs' (Appellants ) suit for perpetual injunction in respect of the suit land known as "Mali" bearing Survey No. 299/1+3 admeasuring 4 Acres 31 Gunthas of village Beedsangavi, Taluka 3 Ashti District Beed. Thus, the appeal is against the concurrent findings of both the Courts below. 2. Heard both the Sides. 3. The appeal came to be admitted by this Court on 29-01-2009 on Ground Nos. 1 and 2 namely factors required to be taken into consideration as regards to actual physical possession, threat of dispossession, and / or obstruction, prima facie and balance of convenience, have not been considered and factors relating to revenue record prepared by Talathi and Revenue Authority for correction which are irrelevant having been considered as against the factual evidence of possession. 4. In the light of above controversy, judgment of the trial Court, on appreciation of the facts and further impugned judgment of the First Appellate Court which is final Court of facts, 4 have been minutely scrutinized by this Court. 5. The material facts leading to the dispute can be briefly stated as under. Plaintiff No. 1 Bhanudas and plaintiff No. 2 Sarjerao, who are cousins, claimed to be owner of the suit land bearing Survey No. 299/1+3 admeasuring 4 Acres 31 Gunthas situated at village Beedsangavi, Taluka Ashti, District Beed, jointly with one Rangnath Gomaji (uncle) and all of them got 1/3rd share each therein. It was their ancestral property, as per family partition which took place on 07-08-1939 between father of the plaintiffs namely Nathu, father of defendant Nos. 1 to 3 namely Daji and Ganpati Maruti. On 29-05-1979, plaintiff No. 1 Bhanudas purchased share of Rangnath Gomaji for consideration of Rs.3000/- vide registered sale dseed. Plaintiff No. 1 Bhanudas became owner of 2/3rd share and plaintiff No. 2 Sarjerao got 1/3rd share and they continued in joint 5 possession of the suit land since 1975-1976. The Talathi wrongly recorded the name of Rangnath by mistake. The plaintiffs submitted that the boundaries of the suit land are given in the sketch map alongwith the plaint, demarcating their possession. Thus, according to the plaintiffs, defendants have no concern with the suit land and they are not in possession. Despite this, on 12-09-19080 the defendants illegally obstructed the plaintiffs over the suit, which is considered as a cause of action to the plaintiffs, for filing the suit for perpetual injunction simplicitor in order to protect their possession. 6. The defendants have filed their Written Statement and denied the description of the suit land given in the plaint, sketch map and boundaries showing the possession. The well shown by the plaintiff in the suit land is joint between the plaintiffs and defendant Nos. 1 to 7. Survey No. 299 originally divided in three 6 parts, out of which Survey No. 299/3 came to the share of plaintiffs and Rangnath and they have 5 Anna 4 Pai share each therein. Plaintiff No. 1 purchased share of Rangnath. Survey No. 299/2 was given to Shripati and defendant Nos.1 to 7 got Survey No. 1. According to the defendants, boundaries of the suit land, given by the plaintiffs, are wrong. The defendants have given genealogy in the Written Statement. In the year 1975-76, the defendants also raised objection in for recording name of the plaintiffs falsely in revenue record, by the Talathi. On 07-08-1939 there was partition and in the said partition, land Survey No. 299 came to be divided as mentioned above. As per partition, the plaintiffs and defendants are cultivating their lands, allotted to them. According to the defendants, Talathi made false entry in the name of the plaintiffs and the defendants are in possession of the land Survey No. 299/1 and therefore, there is no question of obstruction in the possession of the plaintiff, 7 over the suit land, allotted to them in partition and thus, prayed for dismissal of the suit. 7. It is, thus, seen that the learned trial Court after framing issues and recording evidence, dismissed the suit of plaintiffs and held that the plaintiffs did not prove their title, possession over the suit property and the description of the property given in the plaint is not correct. The plaintiffs' case that the defendants obstructed the plaintiffs' agricultural operation on 12-09-1980 was not believed and accepted. The First Appellate Court also by the impugned judgment and decree dated 24-06-1998 confirmed the judgment and decree of the trial Court, on the same findings. The plaintiffs - appellants have therefore filed Second Appeal on the basis of revenue record of the suit land Survey No. 299/1 + 3 in order to protect the possession as shown in 7/12 extract. However, the same was not relied as true and 8 correct by the learned trial Court. It was rightly observed by the Courts below that when the original Survey No. 299 was only admeasuring 6 Acres 20 Gunthas then how the concerned Talathi has shown the share of the plaintiffs to the extent of 4 Acres 31 Gunthas. So, it is crystal clear that there is prima facie mistake of the Talathi while preparing the 7/12 extract in the name of the plaintiffs. It is also observed that the plaintiffs are not concern with the land Survey No. 299/1 as well as Survey No. 299/2 and the plaintiffs admitted the portion of Shripati Ganpati which is Survey No. 299/2, as per partition effected in the year 1939 which is also shown by Mutation Entry No. 748 at Exhibit-29. The learned trial Court discussed the evidence about revenue record, mutation entries and rightly dismissed the plaintiffs' suit. The learned First Appellate Court also in Para. 14 of the impugned judgment reappreciated same and held that the plaintiffs failed to establish that they are owners and in 9 possession of the land Survey No. 299/1 and therefore, they are not entitled for injunction as prayed. 8. I have gone through the Record and Proceedings and also rough sketch shown in the plaint but same cannot be accepted as correct map for showing their respective possession. Since the issue of possession has been dealt with thoroughly by both the Courts below, no interference is called for. As the learned First Appellate Court is the fact finding Court, no case is made out by the plaintiff and the appeal must fail. 9. In that view of the matter, Second Appeal is dismissed, with costs and accordingly disposed of. ( N.D. DESHPANDE, J.) sut/DEC09/sa297.98