1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.108 OF 2006 1 Sow.Rekha Chandrakant Joshi, age: 32 years, Occ: Household and Agriculture; 2 Anant Candrakant Joshi, age: 14 years, U/g of appellant no.1. Both R/o Mahapur, Tq. and District Latur. 3 Sunil Vinayakrao Joshi, age: 26 years, Occ: Service, R/o Venkatesh Nagar, Latur. Appellants Versus Manikrao Anantrao Joshi, age: 64 years, Occ: Agril., R/o Venkatesh Nagar, Tq. and District Latur. Respondents Mr.S.S.Halkude, advocate for appellants. Mr.R.K.Ashtekar, advocate for Respondent. CORAM: R.M.BORDE, J. DATE : 07th September, 2009. P.C.: 1 This is an appeal by original defendants raising exception to the judgment and decree passed by Ad hoc Additional District Judge, Latur, on 15.09.2005 in Regular Civil Appeal No.08/2005, thereby modifying the judgment and decree passed by II Joint Civil Judge, Senior Division, Latur on 2 20.11.2004 in Regular Civil Suit No.112/2002, to certain extent. 2 Plaintiff instituted suit claiming decree of perpetual injunction in respect of an area alleged to have been owned by him to the extent of 4 acres 20 gunthas. According to the plaintiff, there was family partition in the year 1963 and four brothers were allotted shares in accordance with the arrangement made. It is his further contention that while implementing consolidation scheme in the year 1972, some error cropped up and the area possessed by plaintiff was shown less, whereas area possessed by defendants was recorded more. Plaintiff, as such, presented suit claiming decree of injunction. 3 Defendants appeared and resisted suit claim by filing written statement. According to them, the correction effected, during implementation of consolidation scheme, is as per the actual possession of parties and no error, as contended by plaintiff, has appeared in recording entries after preparation and finalisation of consolidation scheme. 4 The trial Court, after considering evidence placed on record, came to the conclusion that the plaintiff has established his case and as such, restrained defendants from causing obstruction in the peaceful possession of the plaintiff over an area of 1 hectare 82 ares. 5 Defendants, being aggrieved by the judgment and decree passed by the trial Court, preferred an appeal, being Regular Civil Appeal No.08/2005, which came to be heard and disposed of by Ad hoc Additional District Judge, Latur, who, after hearing respective parties, was pleased to modify the decree passed by trial Court and clamped an order of injunction 3 in favour of the plaintiff and against defendants in respect of an area to the extent of 1 hectare 73 ares instead of 1 hectare 82 ares, as directed by the trial Court. 6 I have perused the judgments delivered by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 7 It is contended by learned Counsel for appellants that the Courts below have committed an error in determining the issue of consolidation and pending disposal of appeal before the consolidation authorities. However, according to him, the consolidation appeal has not been disposed of and same is pending. According to him, both the Courts below have fallen in error in determining the issue as regards appellate decision of the consolidation authority. 8 It is to be borne in mind that the decision rendered by the Courts below is not solely on the basis of determination of issue in consolidation appeal by the appellate authority. The Courts below have recorded a finding that there was prior partition effected in the year 1963 and the predecessor-in-title of the plaintiff was allotted an area to the extent of 4 acres 20 gunthas, whereas predecessor-in-title of defendants was allotted an area to the extent of 5 acres 10 gunthas. After alleged partition in the year 1963 for about 10 years, the revenue entries, those were recorded, were in conformity with the partition effected in the year 1963. However, some error appears to have cropped up after preparation of consolidation scheme implemented after 1963 and area shown to have been possessed by the plaintiff is reduced. On consideration of documentary record in respect 4 of earlier revenue entries and later corrected entries, recorded after implementation of scheme of consolidation, itself show that there is change in the record only after implementation of the scheme, as contended by the plaintiff. There was also an application presented by defendants in the year 1981 for measuring the property through D.I.L.R. In the joint measurement conducted by D.I.L.R. in 1981, it has been found that plaintiff is in possession of 1 hectare 73 ares and not 1 hectare 82 ares, as contended. Although, defendants have not admitted measurement conducted in the year 1981, however, the first appellate Court has placed reliance on the measurement conducted, which was, in fact, in accordance with the application tendered by defendants. I do not find any error on the part of first appellate Court in placing reliance on the measurement carried out by D.I.L.R. in the year 1981. Thus, earlier revenue record, after partition of 1963 until 1972 and record in respect of measurement effected in the year 1981, supports the case put up by the plaintiff. Thus, in my opinion, the Courts below have approached the problem in correct manner and reasons recorded by both the Courts below are proper and do not call for interference in exercise of powers under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. 9 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa10806