1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 616 OF 2007 Sahebrao s/o Ganpatrao Jagtap-Died-L.Rs.- 1-A) Subhash s/o Sahebrao Jagtap and ors. ...Appellants (original plaintiffs) VERSUS Sitaram Mahadeo Pingale and ors. ...Respondents (original defendants) ..... Shri A.G. Dalal, advocate holding for Shri V.D. Salunke, advocate for the appellants Shri M.K. Deshpande, advocate for respondent nos. 1 to 3 ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 2 nd February, 2011 PER COURT : 1 Heard Shri A.G. Dalal, advocate holding for Shri V.D. Salunke, advocate for the appellants and Shri M.K. Deshpande, advocate for respondent nos. 1 to 3. 2 2 The appellant i.e. original plaintiff has filed the present Second Appeal challenging the judgment and order dated 11.2.2004, rendered by the learned Ist Ad hoc Additional District Judge, Beed, in Regular Civil Appeal No. 178 of 1994, thereby allowing the said appeal and dismissing the suit filed by the plaintiff and reversing the judgment and decree passed by the learned 4 th Joint Civil Judge, Junior Division, Beed on 30.6.1994 in Regular Civil Suit No. 237 of 1989. The parties are herein after referred as per their original status i.e. ‘the plaintiff’ and ‘the defendants’. 3 The plaintiff filed the suit against the defendants for possession of encroached portion i.e. land admeasuring 6 Ares, situated at Tarat Pingle, Beed. It is the contention of the plaintiff that he is the owner and in possession of land Survey No. 134, admeasuring 7 acres 36 gunthas, situated at Tarat Pingle Beed, and the defendants are the owners of land Survey No. 94AA, situated on the eastern side of the suit land. It is alleged by the plaintiff that the defendants, without any right, made encroachment upon the eastern side of the suit land of the plaintiff about two years back. Hence, the plaintiff filed an application for measurement of his land to the office of the District Inspector of Land Records, and accordingly, the 3 District Inspector of Land Records measured the suit land on 22.4.1989 in presence of the plaintiff and the defendants and it was found that the defendants encroached over the suit land of the plaintiff on eastern boundary to the extent of 6 gunthas. The plaintiff produced the certified copy of the map drawn by the District Inspector of Land Records, Beed to substantiate his contention. 4 The defendants filed the written statement and resisted the suit claim of the plaintiff and submitted that they are in possession of land Survey No. 94AA to the extent of 3 acres 16 gunthas since beginning. They also contended that they never encroached upon the land of the plaintiff as alleged. The defendants stated that they constructed a tin shed room in his land before 10 to 11 years. The defendants further stated that they had no notice of measurement by District Inspector of Land Records and the map by the District Inspector of Land Records has been prepared behind their back and same is not binding upon them. They also stated that they are in possession of the said land as owners for the period of more than 12 years, and therefore, they have perfected their title to the said land. It is also stated by the defendants that the suit is barred by limitation. 4 5 Basing upon the pleadings, the learned Trial Judge framed the issues and after considering the evidence adduced and produced by the parties, the learned Trial Judge decreed the suit by judgment and order dated 30.6.1994. Being aggrieved and dissatisfied by the said judgment and decree, the defendants preferred Regular Civil Appeal No. 178 of 1994 before the District Court, Beed and same was allowed by the Ist Ad hoc Additional District Judge, Beed by judgment and order dated 11.2.2004. Hence, the original plaintiff has filed the present appeal assailing the said judgment of the First Appellate Court. 6 Having the comprehensive view of the matter, it appears that the copy of the notice allegedly sent by the District Inspector of Land Records to the defendants in respect of measurement of the suit land has not been produced on record. Moreover, there is no documentary evidence on record to prove and establish that the defendants were present at the time of measurement of the suit land. Moreover, the panchanama produced by the District Inspector of Land Records also does not reflect that the defendants were present at the time of measurement of the suit land. Moreover, the First Appellate Court has observed that the suit was decreed by the Trial Court without the measurement of the land of the defendants. 5 The First Appellate Court also framed the issues and came to the conclusion that the plaintiff has failed to prove the title over the suit property, and more particularly the plaintiff has failed to prove that the defendants have encroached over land Survey No. 134 to the extent of 6 Ares portion, and the reasoning adopted therefor by the First Appellate Court cannot be faulted with, and therefore, consequently, the First Appellate Court has rightly reversed the judgment and decree passed by the Trial Court. 7 In the circumstances, no substantial question of law could be formulated, and therefore, the present appeal lacks merits and same stands dismissed. (SHRIHARI P. DAVARE, J.) dbm/sa616.07