1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 187/2006 (Shriram Tulsiram Oalambe & others VERSUS Shyamrao Shriram Dhore & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Mrs. Lapalikar, counsel for the appellants. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 11, 2008. Heard the learned counsel for the appellants. The appellants are the original defendants. A suit was filed by the plaintiffs for possession and mandatory injunction. It was pleaded by the plaintiffs that the plaintiffs are the owners of the suit property as the property was their ancestral property and moreover their uncle Pundlik Dhore had executed a will in favour of plaintiff no.1 on 04.02.1970. According to the plaintiffs, the defendants had made encroachment on the southern lane and fixed a door on the suit lane and also took possession of the otta. The plaintiffs had reported the matter to the police as well as the revenue authorities and the Revenue Authority had taken action against the defendants and the defendants were fined. The plaintiffs, therefore, sought the possession of the disputed property from the defendants. 2 The defendants denied the claim of the plaintiffs. It was the case of the defendants that the suit property was their ancestral property and was in their possession since 50 years. They pleaded that they had an easementary right to flow waste water on the eastern side of their house i.e. through the suit property. According to them, since they were in possession of the suit property for more than 12 years, they became the owners thereof by adverse possession also. Both the Courts considered the evidence tendered by the parties on record to hold that the plaintiff had succeeded in proving that the otta and the suit lane was owned by the plaintiffs. The Courts further held that in the third week of December-1989, the defendants illegally encroached upon certain portion of the suit property and affixed a door at points AD in the suit lane thereby obstructing the plaintiffs. The Courts further held that the defendants failed to prove that the disputed otta and the lane portion was in their possession since more than 50 years and the Courts categorically recorded a finding that the defendants had encroached the same some time in the month of December- 1989. 3 In view of the aforesaid findings, the Courts further held that the defendants could not prove their ownership over the suit property by adverse possession. While recording the aforesaid findings, both the Courts considered the oral evidence tendered by the parties on record, the plaint map Exh.45, the will at Exh.57, the order passed by the Revenue Authority, by which the defendants were fined for making encroachment upon the plaintiff's land, and the sale-deed dated 20.03.1948 which further showed that the defendants were not the owners of the suit property. The Courts considered the fact that the defendants had not challenged the order of the Revenue Authority in any proceedings. The Courts also observed that though the defendants had stated that they purchased the suit property in the year 1948, they had not produced the document of title before the Court. The findings recorded by both the Courts are just and reasonable. Moreover, they are findings of fact which do not give rise to any substantial question of law. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE