1 sa29 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.29 OF 2010 Yashwant Dewo Bhoir ...Appellant vs. Laxman Babu Bhoir & Ors. ...Respondents Mr.Kiran Joshi for the appellant Mr.S.S.Deshmukh for the respondent nos.1 to 3 CORAM : A.S.OKA,J. DATE : NOVEMBER 18, 2011 P.C.: 1 The Second Appeal is preferred by the original plaintiff. The plaintiff filed a suit for declaration of ownership and possession. The case made out by the plaintiff is that he along with one Babu (father of the respondents-defendants) was cultivating the suit lands for a period of 25 to 30 years prior to the year 1957. It is contended that the appellant and the said Babu became the deemed purchasers of the suit lands under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the said Act). However, it is an admitted position that sale under section 32-G of the said Act was executed only in favour of the said Babu. 2 It is the case of the appellant that there was oral partition between the appellant and the respondents and accordingly, mutation entry no.300 was made which shows that the suit land was allotted 2 sa29 to the appellant in the partition. The Mutation entry was set aside by the Sub Divisional Officer in exercise of suo-motu power of revision under section 257 of the Maharashtra Land Revenue Code, 1966. The order of the Sub Divisional Officer has been confirmed by this Court in a Writ Petition. 3 The Trial Court dismissed the suit by holding that the relationship between the appellant and the said Babu was not established. The Trial Court held that the mutation entry no.300 was not helpful to the appellant as the same has been set aside. The Appellate Court has confirmed the findings of the Trial Court in the Appeal preferred by the appellant. 4 The first submission of the learned counsel for the appellant is that the suit is also based on prior possession and there was evidence on record for establishing the prior possession of the Appellant. He submitted that gross illegality is committed by the Sub Divisional Officer by setting aside the mutation entry no.300 which was effected in August 1986 by the order passed in the year 1993 after initiating suo motu revision proceedings in the year 1993. He relied upon the decision of the Apex Court in case of Santoshkumar Shivgonda Patil and others Vs. Balasaheb Tukaram Shevale[(2009) 9 SCC 352] and submitted that the order of the Sub Divisional Officer is without jurisdiction. He submitted that only on the basis of the order setting aside the mutation entry, a finding could not have been recorded by the Courts below against 3 sa29 the appellant. He submitted that cultivation of the suit lands by appellants on the tiller s day has been proved. 5 I have considered the submissions. The case made out by the appellant was that though he was jointly in possession of the suit lands along with Babu, the sale under section 32-G of the said Act effected only in the name of the said Babu. The appellant did not take out any proceeding to challenge the sale. However, the case of the appellant is that there was a partition effected between himself and the respondents in the year 1986 by which the suit land was allotted to him. It appears that the appellant relied upon Mutation entry no.300 as well as partition made in writing. The Appellate Court in paragraph 6 of its Judgment has held that though the appellant deposed that the partition was made in writing, no written document was produced before the Court. The order setting aside the mutation entry no.300 has been confirmed by this Court in Writ Petition. Therefore, now the appellant cannot challenge the said order. Even assuming that the order setting aside the mutation entry has no legal effect, the appellant admitted that the partition in writing was made but the writing was not produced before the Court. Thus, the position which emerges is that the appellant did not challenge the sale of the suit land in the name of said Babu and his claim of exclusive ownership on the basis of the partition could not established. 6 The suit filed by the appellant was not based 4 sa29 only on his prior possession. In fact, a declaration of ownership was claimed. After having failed to prove the ownership, now the appellant cannot contend that the suit is based on prior possession. There is no reason to interfere with the concurrent findings of fact recorded by both the Courts below. 7 No substantial question of law arises. Appeal is dismissed with no order as to costs. Civil Application no.67 of 2010 does not survive and the same is disposed of. JUDGE