1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.62 OF 1990 Pandurang Govind Teli, age major, occup. Agril. r/of Pimpalgaon Hareshwar Taluka Pachora, Dist.Jalgaon (E.K.) (address is as shown in the judgment of District Court, in Appeal No.168/85 Appellant/ Plaintiff versus 1. Vishwanath Mahadu Mahajan (now deceased), through : heirs/Legal Representatives: 1-A. Raghunath Vishvanath Mahajan age major,occupation service, resident of Bahulkheda,taluka Soegaon, district Aurangabad. 1-B. Pandurang Vishwanath Mahajan, age major, occupation:service resident of Bahulkheda, taluka Soegaon, district Aurangabad. 1-C. Vithal Vishwanath Mahajan, age major, occupation service, resident of Bahulkheda,taluka Soegaon, District : Aurangabad. 1-D. Yuvraj Vishwanath Mahajan, age major, occupation service, r/of Bahulkheda,taluka Soegaon District : Aurangabad. 1-E. Mrs. Savitribai w/o Tukaram, age major, occupation house- hold, resident of Bahulkheda, Tq. Soegaon, Dist.Aurangabad. 1-F. Smt.Yamunabai w/o Vishwanath Respondents/No.1 Mahajan, age major, occup. orig.deft.No.1. household, r/of Bahulkheda, Nos.1A to 1E are Tq.Soegaon, Dist.Aurangabad. heirs of Resp.No.1 2 ----------------------------------------------------------- Shri K.S. Naik, Advocate, for the appellant. Shri S.R.Deshpande, Advocate for the Respondents. ----------------------------------------------------------- Coram : P.R. Borkar, J. Date : May 7, 2010 ORAL JUDGMENT 01. This second Appeal is preferred by original plaintiff whose suit bearing R.C.S. No.24 of 1982 for possession of allegedly encroached portion admeasuring 45 R. was dismissed by the learned Civil Judge (Junior Division), Sillod, on 23.7.1985; which judgment and decree is further confirmed in Regular Civil Appeal No.168 of 1985 by learned Additional District Judge, Aurangabad, on 29.6.1989. 02. Briefly stated, the plaintiff-appellant is owner of Gat No.128 (A2) admeasuring 4 hectare 52 R., including pot kharab bounded as described in plaint and situated at village Bahulkheda, Taluka Soegaon, District Aurangabad. On the western side of the said land, admittedly there is village boundary and a stream which is described at some places as river, beyond which there is village Rampura where land of 3 the defendant is situated. In para.3 of the plaint, it is stated that defendant encroached 45 R. portion of land of the plaintiff by crossing even the river and the village boundary and for the purpose he is alleged to have diverted course of the river by digging it. It is further stated that the land was got measured by the plaintiff from a Cadestral Surveyor on 26.4.1991 and a map prepared by Cadestral Surveyor is at Exhibit 42 which showed encroachment over plaintiff's land to the extent of 45 R. 03. In the Written Statement, it is denied by respondent-plaintiff that he changed the course of the river/stream by crossing the boundary of the village and made encroachment on the land of the plaintiff. He also denied allegation regarding digging for changing course of the river. According to the defendant, false suit was filed. The disputed land is alluvial land. 04. It has also come in evidence that so far as disputed alluvial land is concerned, plaintiff and defendant had approached Tahsildar who rejected the claim of the Plaintiff and directed the defendant to approach the Collector for getting alluvial land 4 presumably, under Section 32 of the Maharashtra Land Revenue Code. 05. The trial court and the first appellate court held that the measurements taken were not proper. The entire Gat No.128, of which the land purchased by the appellant-plaintiff is a part, is not measured. In fact, the trial court has made reference to the application (Exh.41) made by appellant- plaintiff for measurement of land and for finding out alleged encroachment/s. The appellant-plaintiff has in the said application stated that there was dispute even with regard to western side boundary and south- north boundaries. So, the appellant-plaintiff has challenged even the boundaries of the land in his possession and sought measurements to ascertain in which directions, encroachment has/have been made in his property. He felt that encroachments could have been from any of the four boundaries. In paragraph 5 of the application, plaintiff gave reasons for measurement as "fixing four boundaries as per the sale deed." In paragraph 7(c) of the application, the plaintiff has stated that the dispute is regarding western side and south-north boundaries. 5 06. The Trial Court and the first appellate court observed that the entire gat No1.28 was 10 hectare 52 R. as per the sale deed. Out of it, western 4 hectare 52 R. land was sold to the plaintiff- appellant. There are about 5 sub divisions of Gat No1.28 of which there are V.F.7x12 extracts at Exhibits 63 to 67. In the circumstances, entire gat No.128 ought to have been measured. Besides, it is also observed by both the courts that the land of the defendant, which is from village Rampura, is also not measured. 07. This second appeal is admitted by order dated 16.8.1990 on following substantial question of law. "Non framing of issue of title or holding that plaintiff has failed to prove title is a point involving substantial question of law." 08. With due respect, after hearing Shri K.S. Naik and Shri S.R. Deshpande learned counsel for the respective parties, I hold that title of the appellant-plaintiff over the area of 4 hectare 5 R. land purchased by him under sale deed (Exh.69/1) is 6 not at all challenged. Though there is observation that technically, the sale deed is not proved, that is casual or stray observation. The defendant has not disputed validity of the sale deed in favour of the plaintiff, or challenged the title of the plaintiff over 4 hectare 52 R. If we consider the certified copy of the sale deed on record at Exhibit 69/1, it gives four boundaries as under; (1) East : Land of Gendalal Vithoba, (2) West : Boundary of village Bahulkheda (3) South : Lands of Onkar Rodu & Babu Rodu (4) North : Land of Narsing Narayan 09. So, if we have regard to the original application (Exh.41) made by plaintiff for measurement of lands, it is clear that the appellant-plaintiff wanted determination and demarcation of all four boundaries as per the sale deed. After going through the evidence of PW-1 Syed Osman Syed Meera, Cadastral surveyor at Exhibit 31, it is clear that he had not measured entire land Gat No.128 so as to demarcate which portion of it is purchased by the plaintiff. He did not measure the land of the Defendant. 10. Certain circumstances need to be considered at this stage. It is no more disputed that in between the 7 lands of the defendant and the plaintiff there is a village boundary and stream/river. Absolutely, there is no evidence to show that the course of the stream/river was changed. Though the appellant- Plaintiff Pandurang Teli stated that the encroachment was made about one month after purchasing the land, the appellant-plaintiff has categorically admitted that the stream / river between his land and that of the defendant had been at the same place since purchase of land by him. He also admitted that the defendant had not dug into the said stream/river. It is also admitted by plaintiff in the statement given by him on 30.9.1981 before the Tahsildar, the copy of which is produced on record, that towards western side of his land, there is a river and beyond the river, there is a land of defendant Vishvanath. Plaintiff also admitted categorically that the suit portion of the land was not given in his possession by his vendor and that the said portion had been in possession of the defendant since beginning. He further admitted that only after measuring the lands, he learnt that the suit portion belonged to him and therefore he was seeking possession of the same. The admission by the plaintiff that he was never put in possession of the suit property is worth considering. 8 11. In the facts and circumstances, in my opinion, the judgment and decree passed by the trial court as confirmed by the first appellate court, cannot be said to be improper or incorrect requiring interference at the hands of this court. Both the judgments are well merited judgments. 12. Hence, Second Appeal stands dismissed. pnd/sa62.90 (P.R.BORKAR, J.)