1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 427 OF 2010 Dadarao S/o Kishanrao Jadhav .. Appellant Versus 1. Gangadhar S/o Raghuji Khanjode and another .. Respondents WITH SECOND APPEAL NO. 428 OF 2010 Santosh S/o Ganeshrao Kadam .. Appellant Versus 1. Gangadhar S/o Raghuji Khanjode and another .. Respondents WITH SECOND APPEAL NO. 429 OF 2010 Chandu S/o Sambhaji Jadhav .. Appellant Versus 1. Gangadhar S/o Raghuji Khanjode and another .. Respondents 2 Shri G. M. Jadhav, Advocate for Appellant in all matters. Ms. M. R. Jamdade, Advocate for the Respondents in all matters. CORAM : S. V. GANGAPURWALA, J. DATE : 30TH NOVEMBER, 2010. PER COURT : . All these appeals are filed by the original plaintiffs who had filed suits for recovery of encroached area. The Trial Court had partly decreed the suits holding that the defendants have encroached some part of the portion of plaintiffs from the Southern side, but the encroachment was determined holding the area owned and possessed by the defendants as 12 Acres 11 Gunthas. Whereas, it is the case of the plaintiffs that, the defendants are owners and possessors of only 7 Acres 34 Gunths. The plaintiffs preferred appeals before the District Court. The District Court confirmed the judgment and decree of the Trial Court and dismissed the appeals. The plaintiffs have assailed the said judgments in the present second appeals. 2. Shri G. M. Jadhav, learned counsel for appellants strenuously contended that the Courts below have committed an error in coming to the conclusion that the appellants were 3 protected tenants and declared owner of land Survey No. 29 to the extent of 12 Acres 11 Gunthas. Shri Jadhav submitted that, in view of the entry in Exhibit 138 and Exhibit 117 it is clear that Raghoji was declared owner only to the extent of 7 Acres 34 Gunths and the same should have been accepted by the Courts below. There was no reason to discard the entry in Exhibit 117 as the same was certified one. The learned counsel further contended that as per Sec. 37 of the Hyderabad Tenancy and Agricultural Lands Act, the tenant is only entitled to retain lands to the extent of one family holding i. e. 21 Acres. Even other land held by Raghoji as tenant was brought to the notice of the Courts, if the area of the said land is considered, Raghoji would not be entitled for declaration to the extent of 12 Acres 11 Guntha. Shri Jadhav, further contended that as per Sec. 36 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1964, the entries and the decisions of the authorities therein is final and the Civil Court cannot travel beyond the said entries as it has no jurisdiction to do so. According to him even under the consolidation scheme the area of holding of the present respondents is shown as 07 Acres 34 Gunthas. On all these counts the learned counsel submitted that the Courts have committed an error in only partly decreeing the 4 suit, when the encroachment was proved by the appellants. 3. With the assistance of learned counsel I have gone through the record. It is a fact that Raghoji was declared owner to the extent of 12 Acres 11 Gunthas. Order of competent authority was passed in the year 1962. Even his name appeared in the list of protected tenants showing his holding to be of 12 Acres 11 Gunthas. Even the possession receipt on record shows that Raghoji was delivered possession of 12 Acres 11 Gunthas. There is no order on record which shows that the order of the revenue authority declaring Raghoji to be a owner of 12 Acres 11 Gunthas is set aside. In that light of the matter, it cannot be held that deceased Raghoji was not a protected tenant, consequently declared owner of 12 Acres 11 Gunthas. The said decision has not been challenged by the appellants either before any higher authority or before this Court or before the Civil Court. Further the objection regarding Sec. 36 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act is concerned, the issue in the present matter is not about the validity of entry in the consolidation register, nor any certificate is produced on record as is required to be issued under the said Act. It is when the certificate of ownership under the consolidation Act is issued, 5 then the presumption arises and in the absence of the same the said presumption also does not arise. Moreover the Court has considered the holdings on the basis of the record i. e. the orders passed by the competent authorities and the possession panchanama. 4. In the light of the above facts and circumstances, no substantial question of law arises. Second appeals are as such dismissed, however with no order as to costs. [S. V. GANGAPURWALA, J.] bsb/Nov. 10