1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 39 OF 2010 Sultan Maheboob Sayyed, Caste Muslim, age: 63 years, Occ: Agriculture, R/o Masalga, Tq.Nilanga, District Latur. Appellant Versus 1 Khatizabee w/o Khabulsaheb Shaikh, age: 68 years, Occ: Agriculture & H.H., R/o Masalga, Tq. Nilanga, Caste Muslim, died through L.Rs: 2 Mahatab s/o Fatru Shaikh, age: 63 years, Occ: Agriculture & H.H., R/o as above, Caste: Muslim. 3 Kondabai w/o Mahatabsaheb, age: 43 years, Occ: Agriculture & H.H., R/o as above, Caste: Muslim. 4 Munnabai w/o Dastgir Shaikh, age: 38 years, Occ: & R/o as above. Caste: Muslim. 5 Gani s/o Mahatab Shaikh, age: 28 years, Occ: Agriculture, R/o as above, Caste Muslim. 6 Harun s/o Mehatab Shaikh, age: 25 years, Occ: Agriculture, R/o as above, Caste Muslim. 7 Babu s/o Dastagir Shaikh, age: 24 years, Occ: Agriculture, R/o as above, Caste Muslim. 2 8 Sherifabee w/o Bhilamsaheb Shaikh, age: 58 years, Occ: Agriculture, R/o Katejawalga, Caste Muslim. Respondents Mr.E.S.Murge, advocate holding for Mr.A.S.Bayas, advocate for appellant. Mr. Gadime, advocate holding for Mr.A.V.Patil, advocate for Respondents No.2 to 7. CORAM: R.M.BORDE, J. DATE : 04th February, 2010. P.C.: 1 Appellant – original plaintiff is raising exception to the concurrent judgments recorded by both the Courts below. 2 Plaintiff instituted Regular Civil Suit No.66/2002 claiming decree of perpetual injunction in respect of land G.No.44 admeasuring 1 hetare 94 ares situate at village Masalga, Tq. Nilanga. Plaintiff is also claiming removal of encroachment alleged to have been committed by defendants over an area to the extent of 20 feet x 19 feet as well as 7 feet x 7 feet and for recovery of possession thereof. One Rashidabee was the mother of plaintiff. According to plaintiff, his mother Rashidabee gifted suit land to him in view of the gift deed dated 04.05.1988. His name was got recorded in revenue records. Plaintiff claims that he is owner and possessor of land admeasuring 1 hectare 84 ares. He has constructed a cattle shed in the disputed property. Defendant no.1 Khatizabee was the sister of mother of plaintiff. Defendant No.3 Kondabai is the daughter and defendant no.2 Mahatab is son-in-law of defendant no.1 Defendant no.4 Munnabai is daughter of defendant no.1. Defendants no.5 and 6 are sons of defendant no.2, whereas defendant no.7 3 is son of defendant no.4 and grand son of defendant no.1. According to plaintiff, defendants have no concern with the suit property. However, they started obstructing his possession and caused damage to eastern band of suit land and started committing encroachment. During pendency of suit, it is made clear that, defendants have caused encroachment in the suit land to the extent of an area admeasuring 20 feet x 19 feet and have also dispossessed plaintiff from an area to the extent of 7 feet x 7 feet. Plaintiff, therefore, claims decree in respect of perpetual injunction against defendants as well as for recovery of possession of encroached area. 3 Defendants appeared and resisted suit by filing written statement. According to them, plaintiff is in possession over an area to the extent of 1 hectare 64 ares only and was never in possession of 1 hectare 94 ares as claimed by him. Defendants have denied that they have obstructed possession of plaintiff over an area to the extent of 1 hectare 65 ares. Defendants claim that they are owners and possessors of land S.No.22/A/2 admeasuring 1 hectare 65 ares and one Turabali was owner of 12 acres 8 gunthas land. Mother of plaintiff Rashidabee, defendant no.1 Khatizabee and one Nyayatbee are the daughters of Turabali. After demise of Turabali, his three daughters got equal share in the land. However, at the time of framing consolidation scheme, the area in possession of plaintiff was wrongly shown. Defendant no.1 has challenged entries in the consolidation scheme by presenting proceeding before Deputy Director of Land Records, Aurangabad and appeal is pending. It is the contention of defendants that although area held by plaintiff and defendant no.1 is shown to have been changed by creating documentary record during implementation of consolidation scheme, old record shows that both the sisters i.e. mother of plaintiff and defendant no.1 were holding equal area. There was no transfer 4 of possession during implementation of consolidation scheme. Defendants, therefore, prayed for dismissal of suit presented by plaintiff. Defendants have also presented a counter claim and sought decree of injunction against plaintiff restraining him from obstructing their possession over an area to the extent of 1 hectare and 65 ares. 4 The trial Court, on the basis of pleadings, framed issues and after recording oral as well as documentary evidence produced by the parties, came to the conclusion that plaintiff has failed to establish his case. The trial Court, as such, dismissed suit presented by plaintiff. The counter claim presented by defendants was, however, allowed and plaintiff is perpetually restrained from causing interference in possession of defendants over an area to the extent of 1 hectare 65 ares out of land G.No.43. The judgment and decree passed by the trial Court was subjected to challenge at the instance of original plaintiff in Regular Civil Appeal No.94/2005. The District Judge-1, Nilanga, who heard the appeal, was pleased to dismiss same by judgment and decree dated 8 th February 2008. 5 I have perused judgments delivered by both the Courts below. The trial Court as well as first appellate Court have recorded a finding that plaintiff has failed to establish his possession over an area to the extent of 1 hectare 94 ares as contended by him. Plaintiff has also failed to establish his possession over an area to the extent of 1 hectare 94 ares, as contended by him. Plaintiff has also failed to establish encroachment allegedly committed by defendants. The trial Court has also recorded a finding that defendants have established their entitlement to an area admeasuring 1 hectare 65 ares out of land G.No.43. The findings of facts recorded by trial Court have been confirmed by first appellate Court while dealing with the appeal. On perusal 5 of the judgments of Courts below, it reveals that as per revenue record prior to consolidation, both the sisters i.e. mother of plaintiff and defendant no.1 were holding equal area to the extent of 4 acres and 3 gunthas each. Khasra Pahani Patrak for the year 1954-55 at Exhibit-62 as well as mutation entry no.28 dated 04.03.1960 at Exhibit-61 confirms this fact. Although there is increase in area shown to have been possessed by plaintiff, after implementation of consolidation scheme, there is no record in respect of transfer of possession of excess area during implementation of scheme of consolidation. 6 In this view of the matter, considering oral as well as documentary evidence, both the Courts below came to the conclusion that plaintiff has failed to establish his case. The findings of facts recorded by the Courts below need not be interfered while dealing with instant Second Appeal. No substantial question of law arises for consideration in the appeal. Appeal is devoid of substance. 7 Second Appeal, therefore, stands rejected. In view of rejection of Second Appeal, pending Civil Applications do not deserve any consideration and those stand rejected. (R.M.BORDE) JUDGE ******* adb/sa3910