IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4926 OF 2008 Shivaji Sakharam Bhadale ..Petitioner. Vs. Shabbir A Jamnagarwala and others ..Respondents. ..... Mr. S.V. Sadavarte for the Petitioner. Ms. Kiran Bagalia with Ms. Asha Bhambwani for Respondent No.1. .... CORAM: DR. D.Y. CHANDRACHUD, J. 18th September, 2008. P.C. : 1. Respondents 1 to 6 to these proceedings instituted Regular Civil Suit 1508 of 1999 in the Court of the Civil Judge, Senior Division, Pune for the removal of encroachment. The original Plaintiffs claimed that they have purchased 5 Hectares and 90 Ares of land under five sale deeds comprised in Hissa No. 30A Gat No.1. The land which was encroached upon was described in paragraphs 2-A, 2-B and 2-C of the Plaint. The suit was decreed on 8th October, 2004. Civil Appeal 90 of 2005 was dismissed by the District Judge at Pune on 7th April, 2007. The Petitioner herein was Defendant No.8 in the suit and Respondent No.11 to the appeal. The cross objections lodged by the Petitioner were held not to be within limitation. The judgment of the first Appellate Court has attained finality and has not been challenged by the Petitioner. 2. Execution proceedings were taken out by the original plaintiffs in which the Petitioner filed an application at Exhibit 18 in Regular Darkhast No.173 of 2007. The objection of the Petitioner was that the suit property was owned by the joint family of the judgment debtors and prior to the consolidation scheme was known as Survey Nos.274/1 and 274/4 having an area of 2 Hectares 77 Ares and 5 Hectares 90 Ares respectively. According to the Petitioner, the consolidation scheme resulted in the two properties being amalgamated and being given one Gat number and that there was no change in possession and in the areas of the property. The Executing Court by its order dated 3rd May, 2008 declined to accept the objection holding that the decree had become final and that in any event it was not the case of the judgment debtor that there was any change in the property or that the property which was described in the suit was a different property. 3. The objection during the course of the execution proceedings was lodged by judgment debtors 1, 2, 5 and 8. In these proceedings only judgment debtor 8 viz. the Petitioner herein has challenged the order of the Executing Court. The submission which has been urged before the Court is that the property has ceased to exist as a result of the consolidation scheme and the boundaries do not tally with the sale deeds. 4. The submission which has been urged before the Court has been correctly rejected by the Executing Court. The judgment of the first Appellate Court dated 7th April, 2007 refers to the evidence of the surveyor and there is a categoric finding that it had come in the evidence that the survey has been effected by actually carrying out a measurement on the spot and a report along with a map at Exhibit 130 was submitted before the Trial Court. The first Appellate Court also noted that it had come in the evidence of P.W. 2 who was the surveyor that the land out of block No.2308 was divided into Survey No.2308/1 and 2308/2. The conclusion which was arrived at by the first Appellate Court was that the evidence of the surveyor was sufficient to reject the contention urged on behalf of the Defendants that land out of block No.2308 is not subdivided. 5. The Petitioner is a party to the proceedings which culminated in the decree of the Learned Trial Judge which was affirmed in appeal. The categoric finding of the first Appellate Court is that the land bearing Survey No.2308 is subdivided into survey No.2308/1 and 2308/2. That being the position, there is no merit in the contention that the land as referred to in the decree had ceased to exist or the decree is incapable of being executed. The Petitioner has instituted a substantive civil suit for setting aside the sale deeds under which the Plaintiffs have claimed their right, title and interest. Obviously the observations in this judgment shall not come in the way of an independent adjudication on the merits of the suit which has been instituted by the Petitioner. Insofar as the objection which was raised by the Petitioner in the execution proceedings is concerned, there was no merit therein and it was correctly dismissed by the Executing Court. The Petition shall accordingly stand dismissed. *****