1 sa636.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 636 OF 2010 Rangnath Sanduba Dhole ...Appellant VERSUS Eknath s/o Santoba Dhole and anr. ...Respondents ..... Shri S.K.Faruk Patel h/f Shri Gulam Dastagir Shaikh, advocate for the appellant Shri A.D.Kasliwal, advocate for respondent no. 1 Shri B.J.Sonawane, A.G.P. for respondent no. 2 ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 1 st March, 2011 PER COURT : 1 Heard Shri S.K. Faruk Patel h/f Shri Gulam Dastagir Shaikh, advocate for the appellant, Shri A.D. Kasliwal, advocate for respondent no. 1 and Shri B.J. Sonawane, A.G.P. for respondent no. 2. 2 sa636.10 2 The present Second Appeal has been preferred by the appellant i.e. original plaintiff, challenging the judgment and decree, rendered by the learned Ad hoc District Judge-4, Aurangabad, in Regular Civil Appeal No. 202 of 2006 on 20.9.2007, thereby dismissing the said appeal preferred by the appellant herein, and confirming the judgment and decree, passed by the III Joint Civil Judge, Senior Division, Aurangabad in Regular Civil Suit No. 271 of 2005 of dismissal of the said suit and decreeing the counter claim filed by defendant no.1 therein. 3 Accordingly, there are concurrent findings of both the Courts below against the appellant herein. The parties hereinafter are referred as per their original status i.e. ‘the plaintiff’ and ‘the defendant’. 4 The facts can be briefly stated as follows :- Plaintiff Rangnath and defendant no.1 Eknath are brothers of each other. Defendant no.1 was adopted by the plaintiff’s uncle, namely Santoba. Plaintiff’s father Sanduba and Santoba are the brothers. Santoba had no issue, and hence, he adopted defendant no.1. Plaintiff’s father Sanduba and Santoba got partitioned the property Gat No. 659, admeasuring 69 Ares, situated 3 sa636.10 at village Phulambri, wherein eastern portion of 35 Ares land was allotted to the plaintiff; whereas western portion of 36 Ares land was allotted to defendant no.1. It is the case of the plaintiff that defendant no.1 got measured the suit land without giving notice to the plaintiff and encroachment to the extent of 3 Ares land has been wrongly shown in the measurement. It is also alleged that there is a Bandh in between pieces of land belonging to the plaintiff and defendant no.1. However, taking the benefit of false measurement, the defendant no. 1 was trying to make encroachment of 3 Ares land through the revenue authorities. Hence, the plaintiff filed the suit simpliciter for injunction. 5 Defendant no.1 resisted the suit claim by filing the written statement and contended that the plaintiff is in possession of 38 gunthas land, as he has committed encroachment upon the land of defendant no.1 to the extent of 3 Ares. It is also contended that there is no dispute that the plaintiff is owner and in possessor of 35 Ares land, and that the plaintiff and defendant no.1 use the water from the common well. It is also the case of defendant no.1 that he applied for measurement of his land and after the measurement, encroachment of 3 Ares of land by the plaintiff was found. Accordingly, defendant no.1 contended that the plaintiff has no right 4 sa636.10 to remain in possession of encroached portion of land. Hence, defendant no.1 prayed for dismissal of the suit, and also prayed that his counter claim be allowed by directing the plaintiff to hand over the possession of 3 Ares of land. 6 After considering the rival submissions and also assessing the evidence adduced and produced by the parties on record, the Trial Court dismissed the suit filed by the plaintiff and decreed the counter claim filed by defendant no.1 by judgment and decree dated 7.7.2006. 7 Being aggrieved by the said judgment and decree, the plaintiff preferred Regular Civil Appeal No. 202 of 2006, which also came to be dismissed by the learned Ad hoc District Judge-4, Aurangabad, by judgment and decree dated 20.9.2007. Hence, the plaintiff has assailed both the judgments and decrees, passed by the courts below in the present Second Appeal. 8 Admittedly, there was partition between Santoba and Sanduba about 25 years back and in that partition, 35 Ares land came to the share of the plaintiff Rangnath and 36 Ares land came to the share of defendant no.1 Eknath, out of Gat No. 659. 5 sa636.10 9 It is the matter of record that the spot panchanama was carried out by the revenue authorities on 20.7.2000 and it was found that defendant no.1 damaged the Bandh, but defendant no.1 Eknath did not challenge the said spot panchanama. It is apparent from the evidence of defendant no.1 Eknath that in the month of January, 2005, the plaintiff Rangnath started making encroachment upon his land by damaging the south north Bandh, and therefore, measurement was carried out on 17.3.2005, and the measurer noticed 3 Ares land excess in possession of plaintiff Rangnath, which was belonging to defendant no.1 Eknath. 10 Moreover, defendant no.1 Eknath examined Surveyor Vishnu Gajaba Tarate and his evidence clearly shows that at the time of measurement, which he carried out as per the plain table method, he was having 7/12 extract, main village map and Tipan Utara with him and he also prepared spot panchanama, but plaintiff Rangnath refused to sign the same and left the place. Moreover, the evidence of defendant no.1 Eknath also discloses specific identification of the property of 3 Ares land by mentioning the boundaries thereof. Accordingly, the Trial Court observed that the evidence on record is sufficient to identify the property of 3 Ares land 6 sa636.10 encroached by plaintiff Rangnath and concluded that plaintiff Rangnath committed encroachment of 3 Ares land as described in claim clause of counter claim and plaintiff Rangnath has no right and interest to retain the possession over that property, and consequently, dismissed the suit filed by the plaintiff and decreed the counter claim filed by defendant no.1. 11 The First Appellate Court, after reappreciating the evidence, observed that the plaintiff is claiming injunction in respect of 35 gunthas of land, but during the course of cross-examination, he claimed the possession over 38 gunthas of land, which contradicted his own pleading about the title over only 35 gunthas land. It is also observed by the First Appellate Court that, on the contrary, his admission about his possession over 35 gunthas land supports the case of defendant no.1. It is further observed that there is no pleading or evidence at all to show that the plaintiff was allotted 38 gunthas of land, and therefore, the evidence of plaintiff damages his own case as regards possession over 35 gunthas land, and consequently, the First Appellate Court dismissed the appeal filed by the plaintiff, and confirmed the judgment and decree in Regular Civil Suit No. 271 of 2005 dismissing the suit of the plaintiff and allowing the counter claim of defendant no.1. 7 sa636.10 12 Considering the reasoning adopted by the learned Trial Court, as well as the First Appellate Court, I do not find any perversity and flaw therein, since it is based upon the evidence on record produced before the said courts. Moreover, the measurer Vishnu Tarate was examined and his evidence clinches the issue in controversy, which reflects that the plaintiff encroached 3 Ares land of defendant no.1. 13 In the circumstances, no substantial question of law could be formulated in this appeal and the present appeal lacks merits, and therefore, same stands dismissed. (SHRIHARI P. DAVARE, J.) dbm/sa636.10