{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.787 OF 2010 1 Bharatbai w/o Manik Phutane 2 Gayabai w/o Babu Phutane 3 Shobhabai w/o Mahadev Gawali 4 Prabhavati w/o Suresh Doke 5 Kashinath s/o Namdev Deshmukh Appellants Versus 1 Baburao s/o Narayan Deshmukh 2 Vishwanath s/o Namdev Deshmukh 3 Naguram s/o Narayan Deshmukh 4 Dhanraj s/o Vyankat Deshmukh Respondents Mr.A.R.Kale, advocate holding for Mr.R.B.Deshmukh, advocate for appellants Mr.S.M.Vibhute, advocate for respondents. CORAM : S.S.SHINDE, J. DATE : 30 th November, 2011 PER COURT: 1 This appeal is filed challenging the judgment and order dated 30.06.2010, passed by District Judge-1, Latur in Regular Civil Appeal No.157 of 2008. The trial Court, by judgment and decree dated 19.08.2008, dismissed the suit filed by the plaintiffs. 2 Appellants herein, who are the original plaintiffs, claimed that they are owners of 2 hectares 52 ares from land G.no. {2} 73. However, said contention of the appellants-plaintiffs has been negated by both the Courts. Learned Counsel for the appellants submits that even if it is considered that there was mistake in the consolidation scheme, by virtue of the said mistake, plaintiffs are shown as owner of 2 hectares 52 ares. An appeal was preferred by the defendants and without waiting outcome of the said appeal, the trial Court disposed of the suit. According to the learned Counsel for appellants, there is specific bar to entertain even suit and, therefore, the trial Court should not have adjudicated the issue involved in the matter that too awaiting decision of the appeal filed by the defendants challenging implementation of consolidation scheme in respect of the suit property. Learned Counsel further submits that appellants are shown owners of 2 hectares 52 ares from G.No.73 and, therefore, suit filed by the appellants should have been allowed. Learned Counsel also invited my attention to the grounds taken in this Second Appeal and submitted that in view of the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, the trial Court should have awaited for the decision of appeal filed by the defendants before the competent authority under the said Act. Therefore, according to the Counsel for the appellants the Second Appeal deserves consideration. 3 On the other hand, learned Counsel for the Respondents – original defendants, submits that one Namdev had {3} four sons, namely Kashinath, Narayan, Venkat and Vishwanath. Plaintiff No.5 is brother of defendants. The total landed property of Namdev is about 17 acres and some gunthas. Out of the said property, each brother got 4 acres 22 gunthas. Learned Counsel, at the cost of repetition, submitted that so far as ownership of plaintiffs to the extent of 4 acres 22 ares from G.No.73 is concerned, they have no dispute or quarrel and they accept ownership and possession of the appellants – plaintiffs to that extent and both the Courts below also held to that effect. Learned Counsel submits that because there was some mistake while implementing consolidation scheme, plaintiff no.5 manipulated the things and got his name entered in respect of total area of 2 hectares 52 ares. The said act of plaintiff no.5 was in collusion with the Consolidation Officer. It is further submitted that being elder brother, plaintiff no.5 Kashinath is entitled only to 4 acres and 22 gunthas and there is no question of having excess area in his possession or of his ownership. Therefore, both the Courts have rightly concluded that the excess area, which is claimed by plaintiff no.5, is not owned by him and he is not in possession of the said area. Therefore, he submits that the appeal may be dismissed. 4 I have given due consideration to the submissions of learned Counsel for respective parties. On perusal of para 12 of the judgment of the trial Court, it appears that while implementing {4} the consolidation scheme, original S.No.13 was converted into new Gut Number. At that time, it appears that the area of 2 hectares 52 ares is shown more in the name of plaintiff no.5 and less area is shown in the name of other brothers. Taking undue advantage of the said mistake committed by the Consolidation Officer, plaintiff no.5 asserted his ownership and also possession in respect of excess area. While considering the question of ownership and also possession of the appellants – plaintiffs in respect of more area to the extent of 2 hectares 52 ares shown in the consolidation scheme, the trial Court, in para 12 of the judgment, has referred to the evidence of D.W.1 Vishwanath. In para 12 of the judgment, the trial Court observed that at the time of consolidation scheme, the original Sy.No.13 was converted into new Gut Number. At that time, plaintiff No.5, in collusion with the consolidation officer, fraudulently shown 2 hectares 52 ares more area than 4 acres 15 gunthas came to his share in the partition. This finding of fact recorded by the trial Court is confirmed by the lower appellate Court. Though learned Counsel appearing for the appellants was at pains to argue that the trial Court should have waited till the decision of appeal filed by the defendants, in my considered view, it is the present appellants – plaintiffs, who approached the Court, failed to bring anything on record to convincingly prove that they are owners of 2 hectares 52 ares land which was shown in excess of 4 acres 15 gunthas. Therefore, in absence of any evidence on record in respect of ownership to the extent of 2 hectares 52 ares, {5} both the Courts are justified in holding that plaintiffs failed to prove ownership and possession. Therefore, from perusal of the grounds taken in the Second Appeal, it appears that none of the grounds would raise any substantial question of law for consideration in this Second Appeal. The Second Appeal does not raise any substantial question of law. 5 Second Appeal stands dismissed summarily. S.S.SHINDE JUDGE adb/sa78710