1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 373 OF 2006 1. Vilas Vishnu Mahajan, Age 61 yrs., Occu. Service, R/o. Police Head Quarters, Tq. Jalgaon, Dist. Jalgaon. 2. Sau. Sunanda Vilas Mahajan, Age 55 yrs., Occu. Household, R/o. Nashirabad, Taluka Jalgaon, Dist. Jalgaon. 3. Vimalbai Kailas Mahajan, Age 51 yrs., Occu. Household, R/o. Nashirabad, Taluka Jalgaon, Dist. Jalgaon. ....Appellants. (Original Defendants) Versus 1. Dr. Nilkant Ragho Patil, Deceased through his legal heirs 1A. Smt. Pushpanjali Nilkanth Patil, Age 61 yrs., Occu. Household, 1B. Gurudatta Nilkanth Patil, Age 44 yrs., Occu. Agriculture, 1C. Rushikesh Nilkanth Patil, Age 41 yrs., Occu. Agriculture, All R/o. Mothe Waghode, Taluka Raver, Dist. Jalgaon. ....Respondent. (Original Plaintiff) Shri. Girish Rane, Advocate for the appellants. Shri. M.M. Bhokarikar, Advocate for the respondent No. 1B. 2 CORAM : K.U. CHANDIWAL J. DATE : 29th April, 2010 ORAL ORDER : 1. Heard. Decree for grant of injunction in Regular Civil Suit No. 463/1990 was questioned by the defendants in Regular Civil Appeal No. 57/1999 before the learned District Judge, however, by order dated 13th January 2006 lost in the first appeal and consequently, the second appeal. 2. Mr. Rane, learned counsel representating the defendants (appellants) submits that the substantial question of law between the parties would be, "Was it not legal and proper for the First Appellate Court to remand the matter for fresh consideration after permitting the defendants to lead evidence particularly when the Trial Court has illegally and without jurisdiction closed the side of defendants holding that defendants did not want to lead evidence ?" 3. The plaintiff admittedly filed a suit simplicitor for injunction. His sale deed dated 25.1.1974 is proved at Exh. 78 being plot No. 11 out of the Gat No. 15/3B-2/1. The land was got measured from the office of D.I.L.R., who had fixed boundary marks and map was drawn by the Survey Officer which is at Exh. 84. After such measurement, an entry No. 3 11748 dated 30th January 1981 was taken in the appropriate record (normally called "D Patrak") which is at Exh. 85. The mutation entry in favour of plaintiff was at Exh. 111. The question that has been posed by Mr. Rane is, the plaintiff having purchased land/plot from survey No. 15/3-B/2/1, there could not be change in the land as 15/3-B/5 as has been done by the Talathi concerned. The position is explained by the Talathi, there is no controversy that the plaintiff has any other identically placed property or plot from the land changed as survey No. 15/3-B/5. The position, as stated earlier, is unmistakably clarified in the measurement carried by the D.I.L.R. which is at Exh. 84. 4. Mr. Rane harped that the sale deed at Exh. 78 is not properly proved as the vendor should have been called to prove it. The evidence primarily illustrate, the plaintiff being the purchaser was present at the material time of the sale deed part consideration. He has proved the sale deed in the manner legally required. Attesting witness by itself could not be called for such exercise. The mutation entries are also proved through the evidence of Talathi. The position is established from evidence of adjoining owner of plot No. 3. It is a scrimshank from the defendant/appellant that without leading any evidence he wants that the Court should believe him about genuineness of his document of purchase of plot and also the falsity in the document of plaintiff. This exercise, in spite of there being an opportunity to the defendant, has not enjoyed and lost. Consequently, the point referred above as a substantial 4 question of law would not be available to be formulated. Second appeal lacks merit, dismissed. No costs. 5. Now Mr. Rane submits that the defendant's remedies of filing suit to establish his title need not to be scuttled/foreclosed. 6. If the law permits, the defendant may exhaust his other remedies. [ K.U. CHANDIWAL J.] ssc/fa373.06