(1) SA. 589.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 589 OF 2009 Balasaheb S/o Wamanrao Punjare Age : 54 years, Occu.: Agri., R/o Jalalpur, Tq. and Dist. Parbhani .. Appellant VERSUS Sow. Rohinibai w/o Gangadhar Joshi Age : 47 years, Occu.: Agri., R/o Zari, Tq. and Dist. Parbhani .. Respondent WITH SECOND APPEAL NO. 593 OF 2009 Balasaheb S/o Wamanrao Punjare Age : 54 years, Occu.: Agri., R/o : Jalalpur, Tq. and Dist. Parbhani .. Appellant VERSUS 1] Gajanan S/o Digambar Joshi Age : 24 years, Occu.: Education R/o Zari, Tq. and Dist. Parbhani 2] Sadhana Satyabhan Deshmukh, Age : 30 years, Occu.: Agri. R/o Zari, Tq. and Dist. Parbhani .. Respondents WITH SECOND APPEAL NO. 594 OF 2009 Balasaheb S/o Wamanrao Punjare Age : 54 years, Occu.: Agri., R/o Jalalpur, Tq. and Dist. Parbhani .. Appellant VERSUS (2) SA. 589.2009 1] Gangadhar S/o Ekanth Joshi, Age : 59 years, Occu.: Agri., R/o Zari, Tq. and Dist. Parbhani 2] Digambar S/o Eknath Joshi, Age : 54 years, Occu.: Agri., R/o Zari, Tq. and Dist. Parbhani .. Respondents Mr. V.M. Maney, Advocate for the appellants Mr. C.R. Bharaswadkar, Advocate for the respondents CORAM : A.V. NIRGUDE, J. DATED : 8TH SEPTEMBER, 2009 JUDGMENT:- 1] All the three appeals can be disposed of by this common judgment:- . The respondents in all these appeals filed suits against the appellant, alleging that he had encroached on their lands, and for recovery of the possession of the encroached portion of their lands. All the respondents-plaintiffs, went with a case that in July, 1997 the appellant forcefully took his bullock-cart trampling over their lands. Eventually, he succeeded in removing the boundary marks and completing the act of encroachment. Each respondent in the process lost few guntha area from their lands. By making encroachment on these lands, the appellant allegedly created a strip of land, which he used as cart-way. . The respondents then made an application to (3) SA. 589.2009 the T.I.L.R. Office for measurement of the land. On 19.6.2004, the T.I.L.R. visited the spot and took measurements and found that the appellant had made encroachment on the lands belonging to the respondents. He prepared a location sketch etc. It is the case of the respondents, that before the measurements, the T.I.L.R. had given notice of inspection and measurements to the appellant and pursuant to it, he was present on the spot. Taking clue from the T.I.L.R.'s report, the respondents filed the suits. The appellant denied the allegation of encroachment. He also denied having received any notice in respect of the joint measurement that took place on 19.6.2004. He stated that the position on the spot, was in existence since prior to his acquiring the lands. He suggested that even his vendor was in possession of the lands in question. He also suggested in the alternative that he acquired the title to the disputed lands due to adverse possession. 2] The Courts below concurrently held that the respondents had proved through cogent evidence that when the measurements took place on 19.6.2004, the appellant was present and that the appellant had made encroachment on their lands. The lower Courts also observed that despite opportunity to get the lands in question measured jointly, during the pendency of the suit, the appellant avoided to do (4) SA. 589.2009 so. The Courts below thus, decreed the suits and even ordered separate enquiry in the mesne profits. As far as the findings of fact about encroachment, I am not inclined to disturb it; for the findings are based on cogent reasoning recorded by the Courts below. 3] The learned Advocate appearing for the appellant invited my attention to the averment in the written statement where the appellant took up an alternate defence of title by adverse possession. He further pointed out that the learned Judge of the trial Court completely ignoring this defence, failed to frame an issue based on this defence. He then invited my attention to the judgment of the first appellate Court in which the learned Judge took notice of this part of the defence raised by the appellant but in the later part of the judgment, avoided discussion on this issue. He therefore urged that the appeals should be allowed for remanding the cases back to the trial Court, where the trial Court should be directed to frame the necessary issue and give finding on the same. 4] The question therefore, is whether the Courts below committed serious error in law in ignoring the alternate defence raised by the appellant about adverse possession? The answer is in the negative. Although the learned Judge of the (5) SA. 589.2009 trial Court did not specifically frame an issue based on the defence of adverse possession, he discussed this point in paragraph nos. 27, 28 and 36 of the judgment. The learned Judge of the trial Court held that in the absence of specific pleadings about the adverse possession in the W.S., as to since when the possession became adverse etc., there was no need to frame the issue based on the defence of adverse possession. He then discussed law in support of his view. . However, the learned Judge of the lower appellate Court, did not discuss this point at all in the judgment but the law on this subject is quite settled and is recently reiterated in the judgment of our High Court in the case of Walha Ganpat Tadge since deceased by his legal heis Chandrabhagabai Walmik Tadge and ors. V. Ramchandra Bala Sangale reported in 2005 (2) Mh.L.J. 764. The situation in the reported judgment, is quite similar to the facts of the case. In this case also, the appellant cursorily made reference about adverse possession and apparently abandoned the said defence. After the issues were framed by the trial Court, the appellant-defendant did not urge the learned Judge of the trial Court to specifically frame an issue on the basis of his defence of adverse possession. In view of this, it was held that the plea regarding adverse possession was abandoned. Besides the appellant made a bald statement in the written (6) SA. 589.2009 statement about the adverse possession. This shows that the appellant was not really interested in pursuing this plea. In such background, the question before this Court in the above referred case, was whether the appellate Court was in error in remanding the case back to the trial Court? The learned Single Judge of this Court held that in such situation there was no need for remanding the case back. While coming to such conclusion the Court took into account the law laid down by the Supreme Court in the case of S.M. Karim Vs. Mst. Bibi Sakina reported in AIR 1964 SC 1254 and several other judgments. 5] I am, therefore, not inclined to remand the case back to the lower Court for framing of new issue on the basis of plea of adverse possession. The appeals, should therefore fail. The appeals stand dismissed. Sd/- (A.V. NIRGUDE, J.) arp