1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.1440 OF 2004 WITH CIVIL APPLICATION NO.1903 OF 2004 Baswant T. Nakale Since deceased through his legal heirs 1 Sou. Sindubai M. Patil Age:69 years, Occ: Agriculture, Resident of Bamani, Tal: Sangola, Dist. Solapur. 2 Sou Mangal Vasant Shete, Age 49, Occ: Agriculture, Resident of Dhafalapur, Tal: Jath, Dist. Sangli 3 Shri Shivling Baswant Nakate Age 44 yrs., Occ: Agriculture, Resident of Tawashi, Tal: Pandharpur, Dist. Solapur ...Appellants. (Org. Defts.) v. Smt. Neelabai Laxman Nakate Age 69 yrs., Occ: Agriculture, Resident of Tawashi, Tal: Pandharpur, Dist. Solapur 2 Shri Ramling Baswant Nakate Age 46 yrs., Occ: Agriculture, Resident of Tawashi, Tal: Pandharpur, Dist. Solapur. ...Respondents. ( Org. Plaintiffs) Mr.Surel S. Shah, adv. For the Appellants. Mr.P.R.Arjunwadkar, adv. For the Respondent No.1. CORAM : J.H. BHATIA, J. DATED : 8th October , 2009 2 ORAL JUDGMENT: 1 The appeal is admitted on following substantial question of law: “While as per the record of rights pertaining to land block no.449, area of 449/1 acquired by the Government is 3 H 20 R, area of block 449/2/1 belonging to the plaintiff is 2 H 40 R and the area of 449/2/2 belonging to the defendant/appellant is 1H 61R and as per the admission of the Cadestral Surveyor Govind Adsule, at the time of measurement. The defendant was found in possession of only 1H 60 R, whether the Courts below were justified in coming to conclusion that the defendant had encroached upon 30 R land belonging to the plaintiff ?” 2 Heard the learned counsel for the Parties. Perused the judgments of both the Courts as well as the evidence. The plaintiff filed Regular Civil Suit No.748/87 for removal of encroachment by the defendant and possession of 30 R land under the encroachment. Suit was decreed. Appeal No.18 of 2000 filed by the defendant was also dismissed. Admittedly, the land block no.449 was about 18 acres and out of that 8 acres land from the Northern side was acquired by the State and was given gat no.449/1. Remaining land was given gat no.449/2. Laxman, husband of the plaintiff Lilabai, and the original defendant Basvant were brothers inter-se. According to the plaintiff Lilabai, oral partition had taken place prior to 1979 and in 1979 mutation entries took 3 place as per that partition in respect of of gat no.449/2. 2 H 40 R land was allotted to the plaintiff and it was given new no.449/2/1 while 1 H 60 R land was given to the defendant and it was given Gat no.449/2/2. Infact as per the record of rights, area of this block allotted to the defendant was 1 H 61R. According to the plaintiff she got the land measured and it was found that defendant had encroached upon 30R land out of gat no.449/2/1. The Cadestral Surveyor P.W.2 Govind Adsule, who had measured the land was examined before the Court and in examination-in-chief , he deposed that holder of the land gat no.449/2/2 had encroached upon 30 R land out of 449/2/1. However, in the cross- examination, he deposed that at the time of measurement, plaintiff was found in possession of 2 H 10 R and the defendant was found in possession of 1H 60 R of land. From this, it appears that actual possession of the plaintiff was less than her entitlement by 30R. At the same time, actual possession of the defendant was also less by one R. If the defendant was not found in possession of even 1H 61 R land to which he is entitled, it is difficult to understand how it can be held that there was encroachment over the 30 R land by him on the land of the plaintiff. It is true that both the Courts relied on the evidence of Cadestral Surveyor and came to conclusion that defendant had 4 encroached upon 30 R land but none of the Courts have dealt with, this admission given by the Cadestral Surveyor and did not give any reasoning as to how they could come to conclusion that defendant had encroached upon 30R of land of the plaintiff. It may be noted that the defendant had denied partition in 1979 and the allotment of area but on that point there is concurrent finding of both the Courts below that partition had taken place. . However, having come to conclusion about the area allotted to the plaintiff and the defendant, it will be necessary that property should be got measured through the office of District Inspector Land Records and the boundaries of the areas belonging to them be fixed and they should be put in their respective possession to put to an end to the litigation. 3 For the aforesaid reasons, appeal is allowed. Judgments rendered by both the Courts below are hereby set aside only to the extent of direction to put the plaintiff in possession of 30 R land. Regular Civil Suit No.748/87 is hereby remanded back to the trial Court with direction to appoint District Inspector Land Records to measure complete land gat no.449 and to fix the boundaries of the land belonging to the plaintiff as well as the defendant as per the record of rights. Both the parties shall bear cost of measurement equally. Parties shall approach the trial Court 5 on 10th November, 2009. The District Inspector Land Records after receipt of the orders shall take steps to measure the land, fix the boundaries and submit the report to the trial Court within three months without fail. The trial Court shall hear the parties thereon and decide the suit afresh. 4 As the appeal itself is finally disposed off, Civil Application No.1903 of 2004 does not survive and stands disposed off accordingly. 5 Parties and authorities to act upon the authenticated copy of this judgment. (J.H. BHATIA,J.)