1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.465 OF 1991 Date of decision:5/3/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes/No 3. Whether Their Lordships wish to see Yes/No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? Yes/No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the Yes/No. Civil Judges ? 6. Whether the case involves an important Yes/No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/465-91sa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.465 OF 1991 Ram Gajendra Puri, Age 28 years, Occu. Agril. r/o. Nilkantha, Tq. and Dist.Latur. ...APPELLANT VERSUS Dhondiram Martandrao Dhumal, Age 32 years, Occu.Agril. r/o. Masla Tq. and Dist.Latur. ...RESPONDENTS ... Mr. A.G.Dalal, Adv., for Mr.V.D.Salunke, for the appellant. Mr.M.G.Deokate, Adv., h/f Mrs.C.S.Deshmukh, ... CORAM: K.U. CHANDIWAL, J. DATE : 5/3/2010 *** ORAL JUDGMENT: 1. Heard. On 30.10.1991, after hearing the respective Counsel, the Second Appeal is admitted. Notice on ground Nos. IV, VI, VII, VIII, XII and XIV as substantial questions of law between the parties, was issued. The substantial questions of law, referred above are as under: "IV) The lower appellate Court had 3 relied solely on the evidence of Cadestral Surveyor of the office of District Inspector of Land Record ( DILR) and map Exh.43 to arrive at the conclusion that the appellant had encroached upon the land to the extent of 58 Ares, belonging to the respondent. In fact the evidence of Surveyor of the DILR Office Mr.Syed Riazuddin - witness No.2 for the plaintiff does not support the findings reached by the lower appellate Court. (VI) The lower appellate Court ought to have considered that the respondent plaintiff has failed to establish his title to the so called encroached land of 58 Ares. In absence of any cogent and reliable evidence as regards the title to the alleged encroached land of 58 Ares, the lower appellate Court erroneously assessed the evidence as regards possession of the said 58 Ares of land. (VII) The lower appellate Court failed to consider that it is only after the respondent plaintiff established his right or title to the said 58 Ares of land, the question of its so called encroachment or adverse possession would arise, in view of the filing of the suit for possession on the basis of the title. (VIII) The lower appellate court failed to frame an issue as regards title to the said 58 Ares of land and instead placed heavy reliance on the point of possession of the alleged encroached land admeasuring 58 Ares. (XII) The lower appellate Court failed to consider that in fact the suit was barred by the law of limitation, as 4 since ancesters of the appellant and the respondent the Bandh was in existence to the full and open knowledge of the parties and there were standing trees on the Bandh since last 70 to 100 years which is an admitted position in this matter. (XIV) The lower appellate court ought to have considered the alternate plea of adverse possession by the appellant that in view of the continuous, peaceful and open possession of the appellant to the full knowledge of the respondent since last 100 years, raises of presumption of possession and title in favour of the appellant and not in favour of the respondent." 2. The parties are referred with their original status as plaintiff and defendant. RCS No.141/1977 filed by plaintiff before learned Civil Judge, Junior Division, Latur, was dismissed. The plaintiff is owner of Block No.4 admeasuring 18 acres 26 gunthas at village Nilkantha, taluka and Dist. Latur. While the defendant Ram Gajendra Puri, the adjacent land holder, holds land Block No.5, survey no.5, admeasuring 17 acres towards southern side he has allegedly encroached plaintiff's land to the extent of 58 R. from the southern side. Plaintiff got his land measured through D.I.L.R. and the surveyor recorded that there was an encroachment by the defendant to the extent of 58 R. Plaintiff pleaded, defendant has no right or concern with encroached portion of his land and 5 hence suitability for removal of encroachment and mesne profits. The learned Civil Judge, Junior Division, dismissed the suit by order dt. 9.9.1985. The matter was taken before the learned third Additional District Judge, Latur, in Regular Civil Appeal No.169/1985, and by order dt.3rd Sept.,1991, the learned appellate Court evaluated the evidence being fact finding Court, and reached to the conclusion that the dismissal was erroneous. He allowed the appeal and directed removal of encroachment caused by the defendant, to the extent of 58 R and to restore possession to the plaintiff. The above directions are questioned in the Second Appeal on above substantial questions of law. 3. With the assistance of both the learned Counsel, in the Second Appeal, to evaluate the legal worth of the evidence of both the sides, evidence of plaintiff, Cadestral Surveyor, Panch to the panchnama and defendant was analyzed. The Cadestral Surveyor states that the defendant was present, while measurement was carried, however, it is not clearly indicated in the panchnama, proved by him below Exh.42. It does not indicate that defendant has caused encroachment. He says, the encroachment carried or caused by the defendant is indicated in the map which is at Exh.43. 6 4. The grievance of Mr.Dalal, counsel is, there is a single measurement of land of plaintiff to harp upon so called encroachment by the defendant and that too, to the extent of 58 R. He rightly pointed out, there was nothing before the Cadestral Surveyor to demonstrate the old plans, to show as to what were the boundaries and fixations of the points. The measurement of adjoining lands in such eventualities was imperative. I quite see that the learned Cadestral Surveyor did not exercise legal aspects, when the matter revolved to so called encroachment by the defendant. There should have been a positive proved assertion of encroachment by defendant. 5. The other aspect in the matter is, the defendant, at the time of recording evidence, was 26 years old. He has accepted that when the suit came to be filed, he was of the age of understanding. His father expired when he was barely one and half years old. He was categorical in stating that he is owner of 17 acres and 11 gunthas of land. There is no evidence as to when the defendant has encroached the plaintiff's land. It is a matter of record that there operates an injunction in favour of defendant in RCS No.125/1975 which is tendered at Exh.48 before the learned Judge. 7 6. The contention that the defendant was present at the time of measurement is refuted by him. The fact, consequently, remains, even if it is accepted that the defendant was present, however, the measurements have been one sided of the plaintiffs land. It could hardly be said that there was encroachment from the defendant and that too to the extent of 58 R. It was expected of the learned Cadestral Surveyor to have caused measurement of defendants land as defendant asserts to be owner to the extent of 17 acres and 11 gunthas, the excess could have been treated to be of the plaintiff. In the absence of this legal exercise, mere evidence of the Cadestral Surveyor or the plaintiff or his witness for panchnama by itself is not sufficient. 7. The learned appellate Court certainly erred in incorrectly appreciating the evidence. The learned appellate Court more leaned to the legal position of adverse possession, as it was a case so pleaded by the defendant. The learned appellate Court was equally required to assess as to whether the measurement was legal or was correctly drawn or not. 8. The dividing line / boundary mark between the plaintiffs and defendants lands has various trees. According to the defendants, the 8 age of trees may be 4/5 or 10 years. The fact remains, there is no recent change or encroachment in the property of the plaintiff prior to the measurement carried or immediately before 4/5 years of such measurement. The earlier suit, being No.125/1975, by the defendant also display his stand. 9. The panchnama at Exh.42 does not bear signature or thumb impression of the defendant nor it so discloses about the presence of the defendant. The lower appellate Court certainly misread the evidence on record and reached to erroneous conclusions of facts and law. In the result, the substantial questions formulated on 30.10.1991 provide answer that the lower appellate Court has committed an error. The plaintiff has failed to establish that the defendant has encroached on plaintiff's land to the extent of 58 R. 10. Be that as it may, though the plaintiff failed in establishing encroachment of 58 R, which is apparently on technical grounds, the rights and remedies available to the plaintiff to get adjoining lands measured and then to establish if any encroachment is effected by any of the adjoining land holder and to seek proper relief is not curtailed. 9 Second Appeal is allowed. No costs. (K.U.CHANDIWAL) JUDGE ... agp/465-91sa