1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 450 OF 2009 Virappa s/o Piraji Bunnod & others .. APPELLANTS VERSUS Martandrao s/o Amrutrao Deokate ( deceased through LRs) & others .. RESPONDENTS Mr. S.S. Jadhavar, Advocate for the appellants. ===== CORAM : R. M. BORDE, J. DATE : 14 th October, 2009. PER COURT : 1 This is an appeal by original defendants raising exception to the judgment recorded by the 2 nd Additional District Judge, Nanded on 15-2-2003 in Regular Civil Appeal no. 74/1998 whereby the first appellate court set aside the judgment and decree passed by the trial court on 25-3-1998 in Regular Civil Suit no. 136/1993. 2 Respondent / plaintiff instituted suit claiming declaration of ownership as well as possession of agricultural land. Plaintiff claims recovery of possession of an area to the extent of 1729.50 sq.mtrs. out of gat no. 1 situate 2 at village Rahati. Plaintiff claims to be the owner and possessor of the property on the basis of purchase effected by him on 19-7-1991. Defendants having no concern with the suit property have encroached upon the portion of land and have assumed possession. Plaintiff, as such, claims eviction and restoration of possession of the encroached area. 3 Defendants resisted the suit by filing written statement. According to them, plaintiff is not the owner of the property and the Tahsildar has made allotment of plots out of the disputed land. On the basis of allotment made by the Tahsildar, the defendants are possessed of the suit property. 4 Trial court after considering the evidence led by the parties came to the conclusion that plaintiff has failed to establish his case and as such dismissed the suit. Plaintiff presented appeal being Regular Civil Appeal no. 74/98 to the District Court, Nanded. Appeal was decided by the 2 nd Additional District Judge, Nanded who was pleased to allow the same and the contesting defendants were directed to handover vacant possession of the disputed property to the plaintiff. During the continuance of the proceeding before the civil court, defendant nos. 8 to 12 entered into compromise with the plaintiff and as such, orders were passed in terms of 3 compromise. So far as defendant nos. 1 to 3, 5 to 7, 13 and 15 are concerned, they claim their entitlement to the suit property on the basis of allotment made by the State Government. It transpires on perusal of the judgment that the State Government had acquired an area to the extent of 8 acres out of land gat no. 1. As such, holding of the plaintiff is reduced to 1 H and 88 R. Cadestral Surveyor was appointed to measure the disputed property and make report to the court in respect of contentions raised by plaintiff as regards possession of the defendants. It was found that the defendants are occupying an area to the extent of 1729.50 sq. mtrs which is different from the area acquired by the State Government. Thus, it is clear that the defendants have committed encroachment over the remaining area of gat no. 1 and area possessed by the defendant is different than the land acquired by the State Government out of the said survey number. In these circumstances, the first appellate court was justified in granting decree in favour of the plaintiff and directing the defendants to handover vacant possession of the encroached portion. Findings of fact recorded by the first appellate court need not be interfered with in exercise of powers under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 4 5 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa450.09.odt