1 sa172.06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 172 OF 2006 1 Shiva Teju Rathod, age 76 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, 2 Shaniar s/o Shiva Rathod, age 37 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, 3 Laxman s/o Shiva Rathod, age 37 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, ...Appellants (Orig. Defendants) VERSUS 1 Jagannath s/o Rambhau Rathod, age 48 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, 2 Ramprasad Rambhau Rathod, age 29 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, 3 Ramesh s/o Jagannath Rathod, age 27 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, 2 sa172.06 4 Ashruba s/o Tukaram Rathod, age 58 years, occ. Agril., r/o Village Jamb Samarth, Tq.Ghansavangi, Dist. Jalna, ...Respondents (Orig. plaintiffs) ..... Shri S.R.Andhale, advocate for the appellants Shri Ram B.Deshpande, advocate for respondent nos. 1 to 3 ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 10 th February, 2011 ORAL JUDGMENT : - 1 Unsuccessful defendants have filed the present Second Appeal, challenging the judgment and order dated 8.4.2004, rendered by the learned District Judge, Jalna, in Regular Civil Appeal No. 63 of 1998, dismissing the said appeal preferred by the defendants/appellants herein, which was preferred by them challenging the judgment and decree, dated 27.3.1998, passed by the learned Civil Judge, Junior Division, Ambad, in Regular Civil Suit No. 191 of 1995. Accordingly, there are concurrent findings of both the lower Courts against the defendants herein. The parties herein after are referred as per their original status i.e. ‘the plaintiffs’ and 3 sa172.06 ‘the defendants’. 2 The plaintiffs filed the suit for recovery of possession of the encroached portion of the land, admeasuring 24 Ares. The plaintiffs claim to be the owners and possessors of the land bearing Gat No. 196, situated at Kothala Bk., Taluka Ghansawangi. Plaintiff no.1 is the father of plaintiff nos. 2 and 3 and they claim to be the owners of northern portion of Gat No. 196; whereas plaintiff no.4 claims to be the owner of southern portion of the said land. It is the contention of the plaintiffs that the defendants have no concern in any manner with the said suit land. The plaintiffs also contend that to the eastern side of the said land, there is a boundary of village Jamb Samarth and agrees that there is land belonging to the defendants. 3 It is also alleged that in between the land Gat No. 196 belonging to the plaintiffs and the land belonging to the defendants situated at Jamb Samarth, there is Government land having width of 33 feet, which denotes the village boundary of village Kothala and Jamb Samarth. It is the case of the plaintiffs that the defendants committed encroachment by destroying the boundary. Hence, plaintiff no.1 applied for measurement of land Gat No. 196. Accordingly, the District Inspector of Land Records measured the 4 sa172.06 said land and it was revealed that the defendants committed encroachment over 24 Ares land belonging to the plaintiffs, which is shown by the Surveyor in saffron colour in the copy of map produced on record. The plaintiffs requested the defendants to hand over the possession of encroached 24 Ares land, however, the defendants refused to do so. Hence, the plaintiffs filed the suit for the prayers as set out therein. 4 The defendants filed the written statement and opposed the suit claim of the plaintiffs and admitted that the plaintiffs are the owners and possessors of land Gat No. 196 and also admitted the relationship between plaintiff no.1 and plaintiff nos. 2 and 3, but the defendants denied the allegations in respect of the encroachment and other contentions of the plaintiffs. The defendants further contended that the plaintiffs themselves destroyed the village boundary i.e. Shiv and committed encroachment. It is also the contention of the defendants that since five years no crops were raised in the suit land, and hence, the plaintiffs have no right to claim mesne profits. Accordingly, the defendants urged that the suit filed by the plaintiffs did not bear any substance and prayed for its dismissal. 5 sa172.06 5 Basing upon the pleadings, the learned Trial Court framed the issues and after assessing the evidence adduced and produced by the parties on record, decreed the said suit and the defendants were directed to hand over vacant possession to the plaintiffs of eastern 24 Ares land out of Gat No. 196, situated at village Kothala, Taluka Ghansawangi, more specifically shown in map Exh.34. 6 Being aggrieved and dissatisfied by the judgment and decree, the defendants preferred Regular Civil Appeal No. 63 of 1998 before the District Court, Jalna. However, the said appeal also came to be dismissed by the judgment and order dated 8.4.2004 by the learned District Judge, Jalna. Thus, since the defendants lost before both the lower Courts, they have preferred the present Second Appeal assailing both the judgments of the Trial Court as well as the First Appellate Court. 7 Learned counsel for the defendants made submission that there is bar of Section 135 of the Maharashtra Land Revenue Code regarding the dispute between the village boundaries and the Civil Court has no jurisdiction to entertain and try the suit filed by the plaintiffs. Learned counsel for the defendants also canvassed that no joint measurement was taken by the Land Surveyor, and 6 sa172.06 therefore, there is impediment in passing decree against the defendants in respect of the alleged encroached portion of the land. Learned counsel for the defendants also submitted that the defendants were not present at the time of measurement of the suit land by the Surveyor, and hence, both the lower Courts committed mistake and arrived at the conclusion that the defendants encroached upon the land of the plaintiffs, since the alleged measurement was done in the absence of the defendants. Consequently, learned counsel for the defendants urged that there are substantial questions of law to be decided in the present Second Appeal. 8 Learned counsel for the plaintiffs rightly pointed out that there is dispute between the plaintiffs and the defendants in respect of the alleged encroached portion of the land by the defendants and also there is Shiv in between, and there is no dispute regarding the boundary between the two villages, and hence, there is no application of Section 135 of the Maharashtra Land Revenue Code. 9 As regards the next objection of the defendants, the learned counsel for the plaintiffs invited my attention to para 12 of the judgment of the Trial Court, wherein it is specifically stated that 7 sa172.06 Surveyor Shri Rajeshluwar has deposed before the Court that on 26.9.1995 he measured the land Gat No. 196 with due notices to the parties and it was revealed during the said measurement that defendant no.1 had committed encroachment over 24 Ares land belonging to the plaintiffs. It is further observed that though the defendants contended in their written statement Exh. 24 that measurement of the plaintiffs land was bogus and nominal one, there was no whisper in the evidence of defendant no.1 challenging the validity and correctness of the measurement dated 26.9.1995 of land Gat No. 196, carried out by Surveyor Shri Rajeshluwar and it is worth noting that defendant no.1 has not denied specifically in his evidence the fact of measurement dated 26.9.1995 and the detailed particulars shown in the map Exh. 3 in respect of measurement dated 26.9.1995. 10 Considering the said aspect, the Trial Court rightly arrived at the conclusion that the defendants encroached upon the land of the plaintiffs to the extent of 24 Ares in Gat No. 196 and the First Appellate Court rightly upheld the said aspect, and consequently, the submission made by the learned counsel for the defendants bears no substance. 8 sa172.06 11 Besides that, learned counsel for the plaintiffs pointed out that on the application made by the defendants, joint measurement was carried out of the suit land, as well as the defendants land on 26.8.2007 by the District Inspector of Land Records and the map of the said measurement clearly shows the encroachment by the defendants upon the plaintiffs land. 12 It also appears that ad-interim relief was obtained by the defendants from this court on 28.2.2006 which was effective till 23.3.2006. Learned counsel for the plaintiffs pointed out that the plaintiffs had filed the execution proceedings and obtained possession of 22 Ares land from the defendants in the execution proceedings on 24.3.2006 i.e. after expiry of ad-interim relief granted in this application and also obtained the possession of remaining 2 Ares of land on 15.12.2010 through the said execution proceedings, and accordingly, the plaintiffs have obtained the possession of entire 24 Ares of land during the pendency of the present appeal. It is also pointed out by learned counsel for the plaintiffs that the stay application preferred by the defendants herein was subsequently dismissed on 16.3.2009 and even present Second Appeal was dismissed on 5.7.2010 in default and thereafter it was restored subsequently. 9 sa172.06 13 In the light of the afore said facts and legal position, no substantial question of law could be formulated and the present Second Appeal lacks merit, and therefore, same stands dismissed. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE, J.) dbm/sa172.06