1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 7 OF 2010 Vithal Vishnu Patil ........Appellant versus Bhimrao Govind Patil & ors........Respondent. Mr. Bhushan Walimbe adv. for the Appellant. Mr. P.M. Arjunwadkar adv. for the Respondent no.1. Mr. Vijay Mane for respondents 9 and 10. CORAM: B. R. GAVAI, J. DATED : 6th September, 2010. P.C.: 1. By way of present appeal the appellant challenges the concurrent findings recorded by the learned Civil Judge, J.D. dated 22­3­2002 thereby dismissing the suit filed by the present appellant and the order passed by the District Judge­II, Islampur dated 4­2­2009 thereby dismissing the appeal. 2. The suit was filed by the plaintiff for declaration and perpetual injunction claiming therein that he was owner of city survey no. 434 and also for restraining the respondent from interfering with their possession. A counter claim has also been filed by the defendants contending therein that they were the owners of city survey no. 434 and claiming decree for injunction against the plaintiff restraining them to interfere with the possession. The suit of the plaintiff came to be dismissed and the counter claim of the defendants was allowed. Being aggrieved 2 thereby an appeal was filed and the appeal was also dismissed. Hence this Second appeal. 3. Mr. Walimbe, learned counsel appearing on behalf of the appellant submits that the courts below have failed to take into consideration the sale deed which was executed in favour of the appellant on 15­5­1981. He also submits that merely because there are discrepancies in the boundaries as referred in the sale deed and city survey record could not have been a ground for dismissing the suit and the appeal. He submits that the variance in the sale deed has occurred in as much as the description of the boundaries in the sale deed is as per the gram panchayat record. However subsequently the properties were renumbered and the city survey numbers were given. He submits that merely because in the city survey record of 1980 the name of the appellant did not appear, could not be a ground of dismissal of the suit. He submits that as a matter of fact the city survey no 434 was a part of the property purchased by the plaintiff. Mr. Walimbe the learned counsel submits that the courts below have failed to take into consideration that the vendor of the defendant has already sold the property in the year 1978 and as such they have no right to convey the property in favour of the respondent. The learned counsel on behalf of the respondent submits that the courts below on the basis of evidence have concurrently held that the plaintiff has failed to prove its claim and as such no interference is warranted. 4. The learned courts below on the basis of the evidence led before it and the joint measurement which was made in the 3 presence of the parties, has held that when the city survey entries were recorded in 1980 the plaintiff had restricted his claim only in so far as city survey no. 434 is concerned, and not in so far as 433 is concerned. On the basis of appreciation of evidence, the courts below have held that the plaintiff have failed to prove his case. 5. In so far as the claim of the appellant regarding non consideration of the sale deed is concerned, no doubt that if the evidence placed on record has not been considered by the courts below and if the same would have been considered, the decision could have been otherwise would, be a substantial question of law. However an erroneous consideration would not amount to a substantial question of law. Perusal of both the orders would reveal that the sale deed has been considered. It is not the case that the sale deed has not been considered at all. In that view of the matter, no substantial question of law arises. Hence appeal is dismissed. 6. In so far as the contention regarding vendor of the defendant not having any right to convey the property in favour of the defendant is concerned, the same is also a question of fact to be decided on the appreciation of the evidence and I am of the view that the jurisdiction available to this court under sec. 100 of CPC would not permit to go into the said question. 8. Appeal is therefore dismissed. (B. R. GAVAI, J.) 4