1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 541 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM : P.R. BORKAR.J. DATED : 13.04.2010 Heard Mr. S.D. Ingle, Advocate holding for Mr. M.M. Patil Beedkar, Advocate for the appellants and Mr. S.S. Rathi, Advocate for respondent Nos.1 to 3. 2. This is the second appeal preferred by the plaintiffs whose suit for declaration of ownership by adverse possession and for perpetual injunction bearing R.C.S. No.213/2004 was dismissed by the Civil Judge,J.D. Pathri, Dist. Parbhani on 24-08-2006, which judgment and decree was further confirmed in R.C.A. No.108/2006 decided on 20-11-2008 by the Principal District Judge, Parbhani. Brief facts giving rise to this second appeal are as follows : 2 3. The present appellant has three brothers Dattu, Digambar and Madan. There was partition effected between the said brothers in 1971. The plaintiff was allotted 2 H 02R land to his share. However, he was in possession of excess 1 A 20 G land. It is not disputed that Dattu was given 2 H 22R, Digambar was given 2H 28R and Madan was given 2H and some R in the partition. It is also no more disputed that Dattu, Digamber and Madan sold their share to defendant Nos. 1 to 3 by registered sale deeds. There is a well in the land of plaintiffs and its water was utilised by the plaintiffs and defendants. However, there was some dispute and land was got measured through Cadestral Surveyor. The Cadestral Surveyor marked the boundaries and found that plaintiff was excess in possession 1 A 20 G land, which was part of the land sold to the defendants. Suit was filed by the plaintiff in respect of the said 1 A 20G land and he claimed that he had been in possession of the said portion from 1971 and as such, has become owner 3 by adverse possession. He also sought injunction in respect of the said property. 4. The trial Court, so also the appellate Court has held that at the time of measurement 1A 20G land belonging to the land purchased by the defendants was found to be in possession of the plaintiff. However, it is stated that Cadestral Surveyor, at the time of measurement and marking the boundaries had handed over possession of 1A 20G to the defendants. The appellate Court was hesitant initially but at the end, it has also come to the conclusion that when the suit was filed, land of 1A 20G was in possession of the defendants. So, there is concurrent findings fact of both the Courts that the defendants were in possession of said 1A 20G when the suit was filed. 5. In this case, it is stated in Para-9 by the first appellate Court that at the time of arguments Advocate of the present appellant conceded that the plaintiff had failed to prove 4 adverse possession over 1A 20 G land and therefore, in view of the said concession and in view of the finding of the trial Court that the plaintiff had failed to prove title by adverse possession, there is no scope for giving declaration as sought by the plaintiff. So far as the relief of injunction is concerned, both the Courts come to the conclusion that when the suit was filed, the defendants were in possession of the alleged area. The concurrent view taken by the trial Court and the appellate Court cannot be said to be perverse. It is based on evidence. So this second appeal does not raise any substantial question of law, so as to admit it. Hence the second appeal is dismissed. [P.R. BORKAR,J.] sut/APR10/fa541.09