1 (SA No.525/2010 with CAS2149.94) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.525 OF 2010 WITH CIVIL APPLICATION NO.2149 OF 1994 IN SECOND APPEAL NO.525 OF 2010 Madhukar D. Raut and others ..... Appellants. v/s Vishwanath W. Pathare and others ..... Respondents. Ms. Gauri Godse for the appellants. Mr. M.S. Topkar i/b Mr. Vaishali R. Bhilore for Respondent Nos. 1, 2 and 3. CORAM: V. M. KANADE, J. DATE : 29TH APRIL, 2011 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Appellants and the learned Counsel appearing on behalf of Respondents. 2. Respondents/Plaintiffs had filed a suit seeking possession of 18 Gunthas of land on the basis of registered 2 (SA No.525/2010 with CAS2149.94) Sale Deed which was executed between the parties on 20/3/1974. In the suit, it was alleged that pursuant to the Sale Deed, possession was handed over. However, later on, they realized that in respect of 18 Gunthas of land, possession was not given to them and, therefore, the suit was filed. In the Written Statement, the Defendants, Appellants herein contended that the said area which was described in the plaint was part of adjoining land bearing Survey No.139/2 which was owned by them. The Trial Court on the basis of the evidence which was adduced by both the parties, decreed the suit. Appeal was preferred by the appellants herein before the lower appellate court and the judgment and decree of the trial court was confirmed. Being aggrieved by the said two judgments, Appellants have filed this second appeal. 3. It is contended by the learned Counsel appearing on behalf of the Appellants/Defendants that the said Sale Deed was executed by the Respondents/Plaintiffs though the land was owned by their father and, therefore, the said Sale Deed did not convey title to the Plaintiffs. Secondly, it is contended that the Court had appointed surveyor as a Commissioner and the said Commissioner had taken measurement without giving them notice and, therefore, reliance could not have been placed on the said evidence of the surveyor. It is then submitted that the Trial Court had 3 (SA No.525/2010 with CAS2149.94) held, so far as issue No.1 is concerned, that the Plaintiffs’ witness had stated that after execution of the registered sale deed, possession of the land was given. It is submitted that in view of this finding, the Trial Court, thereafter, could not have held that the Defendants were illegally in possession of the said portion of land. It is also submitted that the lower appellate court erred in holding that the Defendants had not taken any objection to the Commissioner’s report, particularly when the Commissioner was cross-examined on various aspects by the appellants herein. 4. In my view, submissions made by the learned Counsel appearing on behalf of the appellants cannot be accepted. Both the Courts below have arrived at a conclusion that the Plaintiffs had established their case in respect of their right over the suit land by virtue of the registered sale deed and also have recorded finding that the suit land which is described in the Plaint co-incides with the Surveyor’s report and the description of the suit land in the Sale Deed. No substantial question of law, therefore, is raised. In my view, it is not possible to interfere with the concurrent finding of fact recorded by the lower Courts. Second Appeal is, therefore, dismissed. 5. Since Second Appeal itself is disposed of, Civil Application No.2149/1994 does not survive and it is disposed 4 (SA No.525/2010 with CAS2149.94) of accordingly. 6. At this stage, the learned Counsel appearing on behalf of the appellants, seeks stay of the decree. Suit was filed in the year 1977. This second appeal was filed in 1994. Taking into consideration this fact, no case is made out for continuation of the stay granted during the pendency of the appeal. Application for stay is rejected. (V.M. KANADE, J.) 5 (SA No.525/2010 with CAS2149.94)