: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.559 OF 1990 ALONGWITH SECOND APPEAL NO.560 OF 1990 1. Vishwanath Sidrappa Bijargi 2. Kashinath Sidrappa Bijargi 3. Rameshwar Sidrappa Bijargi All R/o. 489, Sakhar Peth, Dist. Solapur. 4. Sidramppa Sharanpa Bijargi, Decd., Thru’ Legal Representatives: (a). Shivlingavvabai S. Bijargi (b). Annapurnabai I. Manure ..Appellants All R/o. Valsung, Dist. Solapur. Versus 1. Halvabai Gurubasappa Thalange, Decd., 2. Thru’ Virbhadrappa G. Thalange, Decd., Thru’ Legal Representatives: (a). Vijaykumar V. Thalange (b). Vishwanath V. Thalange (c). Basavraj V. Thalange (d). Gurubasappa V. Thalange All R/o. 152, Guruwar Peth, Dist. Solapur. (e). Akkamahadevi Nagappa Kodekal C/o. Nagappa Kodekal, At & Post Gangawati, Dist.Ballarsi ..Respondents Mr. M.R.Katikar for the Appellants. Mr. Surel S. Shah for the Respondent Nos.2A to 2E. CORAM : SMT. NISHITA MHATRE, J. DATED : 31 ST AUGUST, 2009. : 2 : ORAL JUDGMENT : 1. These two Second Appeals have been heard together since the parties to the Second Appeals are the same and the dispute is with respect to the property being City Survey No.10186 A and B. 2. For the sake of convenience, the parties will be referred to as they were arrayed in the trial court in Regular Civil Suit No.357 of 1973. 3. The plaintiffs sued the defendant in Regular Civil Suit No.357 of 1973 for possession of land admeasuring 16.3 feet east-west and 3.9 feet North- South (later amended to 5.9 feet North-South). According to the plaintiffs, the defendant had encroached upon their lands and, therefore, the suit was filed for possession of the property as described in the plaint. 4. It appears that the house property bearing Municipal No.489 corresponding to City Survey No.10186, Sakhar Peth, Solapur originally belonged to one Hanmantappa Chilla and it admeasured 678 : 3 : square yards. 99 square yards of the western portion of the property was acquired by the defendant under the sale deed dated 9th April, 1947. This property was later allotted Municipal No.489-B corresponding to City Survey No.10186-C. A part of the house situated on the east of the defendant’s property was purchased by one Gurubasappa i.e. the father of plaintiff No.2 and the husband of plaintiff No.1 on 20th March, 1948. This property was later allotted Municipal No.489-A corresponding to City Survey No.10186-B. The defendant also purchased the area to the South and East of the plaintiffs’ property in 1948. This area was demarcated as City Survey No.10186-A which corresponded with Municipal No.489. It appears that in 1971-72, the defendant sold 99 square yards of his property bearing City Survey No.10186-C to one Krishnaswami. 6. The plaintiffs filed a suit for possession and injunction against the defendant. The plaintiffs contended that they were entitled to an area of 16.3” x 5.9” situated to the immediate south of : 4 : their property which is a verandah (osari). According to the plaintiffs, the defendant had encroached upon the southern end of their property. It was pleaded that the defendant had encroached on their land by contending that the verandah which was in the southern part of the plaintiffs’ property bearing City Survey No.10186-B was part of the defendant’s property bearing City Survey No. 10186-A. 7. The defendant contested the suit by contending that the disputed area admeasuring 16.3” x 5.9” was part and parcel of the house property bearing No. 489 which corresponded to City Survey No.10186-A that had been purchased by him vide a sale deed dated 13th October, 1948. The defendant contended that the dimensions of the house property acquired by the plaintiffs predecessor, which were mentioned in the sale deed dated 20th March, 1948, are incorrect. According to the defendant, the area of the property sold and as comprised in the sale deed was less than 119 square yards. Despite this, the predecessor of the plaintiffs was put in possession : 5 : of 119 square yards. 8. Evidence was led before the trial court. On the basis of this evidence, the trial court held that the plaintiffs had proved that they had title to the suit property which was described in paragraph 5 of the plaint. The trial court did not accept the defendant’s contention that he had title to the suit property. The trial court then directed the defendant to pay mesne profit of Rs.720/-. Accordingly, the Suit was partly decreed. 9. The trial court concluded that the disputed property admeasuring 16.3” x 5.9” shown between the red and blue lines in the map produced by the plaintiff at Exhibit “86” belonged to the plaintiffs. The findings of the Court Commissioner as well as the City Survey Officer, which were produced on record indicating that the disputed area was part and parcel of the property owned by the plaintiffs, were accepted by the Court. Calculating the area which was purchased by both the plaintiffs and the defendant from the whole of : 6 : the house property admeasuring 678 square yards, the trial court was of the view that the vendor could not have legally transferred any land in excess of what belonged to him and, therefore, held that the defendant’s claim that he was entitled to the disputed portion was not acceptable. The plaintiffs’ sale deed indicated that the area of 119 square yards was excluded the open space (ota) to the north of the property and consisted of a built-up area as well as the verandah (osri) in the South. It appears that the measurements of the properties had been taken by appointing a City Survey Officer in order to demarcate the boundaries. These measurements and maps were produced before the trial court which are at Exhibits “72” and “73”. The statement of the defendant was recorded below his application at Exhibit “79” which indicates that the defendant was satisfied with the correctness of the measurements and demarcation of the common boundaries of the properties of the parties. The north-south measurements in the maps were recorded as 50 feet. The defendant has then admitted the correctness of : 7 : the measurements given in the Court Commissioner’s report at Exhibits “31” and “47”. The trial court has taken into consideration these admissions and the description of the properties in the sale deeds and has held that the disputed portion was not a part of the defendant’s land. The defendant’s witness has not been believed by the trial court. The suit was thus partly decreed on the basis of the admissions of the defendant. 10. Aggrieved by the judgment and order of the trial court, the defendant preferred an Appeal. The appellate court confirmed the view of the trial court by dismissing the defendant’s Appeal. It is against this order that Second Appeal No.559 of 1990 has been filed. 11. The Second Appeal No.560 of 1990 has been filed against the judgment and order in Regular Civil Suit No.32 of 1975 which was confirmed in Civil Appeal No.416 of 1989. That suit was in respect of the court yard which the defendant claimed as his own, to the exclusion of the plaintiffs. The : 8 : defendant had contended that after the purchase of the property bearing Survey No.10186-B, the plaintiffs had tried to use the open space which is part and parcel of the defendant’s property. They had inserted windows in the compound wall and, therefore, the defendant sought an injunction against the plaintiffs to close the windows and alternatively for possession of the open space admeasuring 19.6” x 11.6”. The plaintiffs resisted the suit contending that they were the owners of the property admeasuring 19.5” x 16.3” beyond the compound wall and had every right to open windows in that compound wall as also to affix gates in the compound wall. The trial court allowed the suit partly, by issuing a mandatory injunction against the plaintiff not to install any gates in the compound wall as it had to be constructed as per the sanctioned plan. The suit in respect of possession was dismissed. Aggrieved by the said decision, the defendant filed a Civil Appeal No.416 of 1981. The Appeal was dismissed and the findings of the trial court were confirmed. The appellate court came to the conclusion that the defendant was : 9 : unable to prove his exclusive ownership of the court yard and observed that the defendant had a title to only a part of the court yard. The case of the defendant was accepted to a certain extent namely that it was held that the width of the court yard to which the defendant had a title was 8 feet and not 13.68 feet as claimed by the defendant. 12. The substantial questions of law raised in both these Appeals are; (a). Whether the City Survey maps together with the Court Commissioner’s maps could be accepted when they were contrary to the description of the property mentioned in the sale deeds ? (b). Whether the boundaries could be accepted when according to the appellants, no measurements were taken during the pendency of the Suit ? : 10 : 13. The disputes have arisen because the defendants contend in Appeal No.559 of 1990 that the “ota” which was to the northern side of the City Survey No.10186-B was a part and parcel of the plaintiffs’ land whereas the plaintiffs contend that, that part was not shown to them when they purchased the property although it is mentioned in the sale deed. If it is accepted that the “ota” was a part and parcel of the plaintiffs’ property, then the encroachment made would be to the extent of 2 feet at the southern end of City Survey No.10186-B. The plaintiffs contended that the “osari” which is to the south of their property was a part of their property and not that of the defendants, while according to the defendants, the osari admeasuring 16.3 ft. x 5.9 ft. was a part of City Survey No. 10186-A which was sold to them vide a sale deed of March, 1948. 14. In view of the fact that the defendant had admitted before the trial court while deposing before it, that the measurements of the Court : 11 : Commissioner as well as of the City Survey Officer were correct, both the courts below have rightly accepted these measurements. The courts below have considered the fact that the properties have been measured, taking into account the description of the properties in the sale deeds and have therefore accepted the case of the plaintiffs. The contention of the learned Advocate for the defendant is that the sale deed mentions the “ota” as a part of the plaintiffs’ property. However, when the defendant himself has accepted the measurements, in my opinion, the orders of the courts below cannot be faulted. The trial court has rightly considered that the total area of the house property was 678 square yards. The plaintiffs had admittedly purchased 119 square yards after 99 square yards were purchased by the defendant. Thus, the two sale transactions of March, 1948 and October, 1948 indicated that 218 square yards were purchased by the parties from the original owner. However, the sale deed of 13th October, 1948 pertains to 474.88 square yards, although an area of this dimension was not available to be sold. The area available : 12 : was only 460 square yards and, therefore, the courts have accepted that the vendor had sold 16.3 x 5.9 square yards in favour of the defendant under the sale deed of 13th October, 1948. 15. Thus, the courts below have arrived at a concurrent finding of fact that the measurements as mentioned in the maps drawn by the Court Commissioner as well as the City Survey Officer are correct and in accordance with the admissions made by the defendants and the sale deeds which were on record. The trial court had rightly decreed the suit in favour of the plaintiffs which has been confirmed by the appellate court. 16. An application has been filed in this court being Civil Application No.5244 of 1990 to produce further evidence on record before the trial court. It is contended that this evidence is in the nature of the measurements which were taken by the City Survey Officer in 1990 i.e. after the present Appeal was filed. It is, therefore, contended that these measurements should be accepted and the : 13 : judgments and orders of both the trial court and the appellate court should be set aside. Significantly, no application was made at any point of time by the defendant to have the lands measured when the trial was pending. Both the parties agreed that the measurements of the Court Commissioner and the City Survey Officer which were produced on record of the trial court should be accepted. In these circumstances, I am of the view that the Civil Application must be rejected. 17. In the Second Appeal No.560 of 1990, the dispute is regarding the court yard between the properties of the plaintiffs and the defendants. The Second Appeal arises in view of the suit filed by the heirs of the defendant against the plaintiffs contending that the court yard admeasuring 57 feet x 13.6 feet was part and parcel of their property has been decreed partly. Common evidence had been led in both the suits and, therefore, the maps which were produced in the earlier suit were accepted as evidence in the present suit. The trial court held that the heirs : 14 : of the defendant i.e. the present appellants were entitled to 8 feet in the east-west direction. The appellants were entitled to 57.6 feet x 8 feet whereas the respondents herein were entitled to 57.6 feet x 5.6 feet. 18. Mr. Shah, on instructions from his client who is present in the court, states fairly that since the sale deed mentions only 50 ft., the respondents would be entitled to the court yard admeasuring 50 ft. in the North-South direction and 5.6 feet in the East-West direction. The respondents will also abide by the orders of the trial court that no gates should be affixed on the compound wall. 19. Civil Application No.5243 of 1990 has been filed in this Appeal for the same reliefs as were sought in the Civil Application No.5244 of 1990. Since the appellants in both the Appeals had accepted the measurements of the Court Commissioner, in my opinion, there is no need to grant the Civil Application to allow the appellants to lead additional evidence. : 15 : 20. In these circumstances, both the Second Appeals are dismissed. However, the concessions made by the respondents in Appeal No.560 of 1990 are accepted. ............