1 SA 625.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 625 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mr.N.V.Gaware,Advocate for the appellant Mr.D.P.Deshpande, Advocate for respondent nos. 1, 2-A to 2-E. Mr.N.L.Jadhav, Advocate for respondent no. 3. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 06/04/2011 PER COURT : 1. This is plaintiffs’ Second Appeal. The plaintiffs had filed Suit for declaration, injunction and in alternative for possession. 2. The case of the plaintiffs was that the land S.No. 46 had four ( 4 ) Pot Hissa and the plaintiffs are purchasers from the respective owners vide registered sale deeds dated 16/3/1981, 20/10/1985 and 28/4/1986. They are entitled for the area, which they have purchased under the 2 SA 625.2010 said sale deeds. The defendants came with the case that S.No. 46 was divided into only three ( 3 ) Pot Hissas and the third Pot Hissa was admeasuring 14 Acres 22 gunthas, whereas the first and second Pot Hissas were admeasuring 4 Acres 21 gunthas and 3 Acres 25 gunthas respectively. The defendants are purchasers from the owners of the third Pot Hissa. The trial Court on evaluation of the evidence, dismissed the Suit. The plaintiffs preferred Appeal. The appellate Court dismissed the Appeal confirming the Judgment and decree passed by the trial Court. 3. Mr. N.V. Gaware, the learned counsel submits that the plaintiff no. 4 had purchased the share of Bhujang admeasuring 5 Acres 27 gunthas vide registered sale deed. The plaintiff no. 2 purchased share of Keshav admeasuring 3 Acres 27 gunthas and plaintiff nos. 2 and 3 purchased 2 Acres from S.No. 46-A-1 vide registered sale deeds. According to the learned counsel, one Gyanba and Narayan were the original owners having half share each i.e. 11 Acres 14 gunthas each. Gyanba’s share was inherrited by his son Namdeo and Narayan’s share was inherrited by Krishna and Rambhau, interalia Namdeo’s half share was inherrited by Keshav and Bhujang and thus the heirs of Gyanba and Narayan were having land 3 SA 625.2010 admeasuring 5 Acres 25 gunthas each in said S.No. 46. According to the learned counsel, the consolidation record could not have been different just because the revenue record and the consolidation record were not prepared as per the ownership. The same would not divest the original owners of their title over the said land. The learned counsel further contends that the defendants can not get any valid title on the basis of the sale deed executed by Bhagwan and Balwant for the area of 14 Acres 22 gunthas in view of the fact that their vendors did not possess title over that area. 4. Per contra, Mr. Dhananjay Deshpande, the learned counsel for the respondent nos. 1, 2-A to 2- E submits that the Courts on evaluation of the evidence has come to the correct conclusion. Right from 1970, the record shows that there are only three ( 3 ) Pot Hissas in S.No. 46 and not four ( 4 ) as contended by the plaintiffs. The sale deeds in favour of the plaintiffs are of subsequent period i.e. subsequent to the formation of the Pot Hissas. The plaintiffs can not get title as their vendors do not possess the same. 5. With the assistance of the learned counsel, I have gone through the Judgments. 4 SA 625.2010 6. The Courts below have considered the evidence in the shape of an evidence, oral as well as documentary. Exh. 94 which is the certified copy of Hissa No. 4 discloses that there were only three ( 3 ) shares in S.No. 46. Hissa No. 1 was admeasuring 3 Acres 25 gunthas, Hissa No. 2 was admeasuring 4 Acres 21 gunthas and Hissa No. 3 was admeasuring 14 Acres 22 gunthas. Even the original register of Hissa No. 4 supported the contention of the defendants. 7. The Courts on appreciation and evaluation of the evidence have arrived at the plausible and possible conclusion. 8. In light of the above, the Second Appeal being sans substantial question of law is dismissed, however with no order as to costs. 9. In view of dismissal of Second Appeal, the Civil Application does not survive and is dismissed. [ S.V. GANGAPURWALA,J. ] KNP/SA 625.2010