1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 14 OF 2008 Baban Gyanuji Gawai & Ors vs. Saraswatibai Ratanlal Agrawal Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. APRIL 28, 2008. Heard Shri Gaikwad, Advocate for the appellants and Shri Mohta, Advocate for the respondent. The appeal is to be disposed of finally at the stage of admission itself and accordingly I have heard the respective parties. The opportunity was given to the parties to peruse the R. & P. At the time of issuance of notice, contention was that there is a nalla which separates field of present appellants – original defendants from the field of respondent – plaintiff and as such there could not have been any encroachment by crossing that nalla. Notice came to be issued. Today during hearing, Shri Gaikwad, Advocate for the appellants – defendants pointed out from the written statement that there is a nalla between two fields with big 2 trees on it. Shri Mohta, Advocate on the other hand, points out that the Commissioner has not recorded any such nalla as constituting boundary between two fields. I have perused cross examination of respondent – plaintiff in this respect and no specific question about nalla constituting boundary are put to him by the present appellants – defendants. Not only this, the Commissioner, who measured the plot was also not put any question in this respect. Today, during hearing, Shri Gaikwad, Advocate also sought to urge certain additional questions of law. His basic contention is the appellants – defendants are in possession of some land since 1965 and he contends that land was never measured and it has not been proved that in May 1977, Dhura was broken and any encroachment was done. He contends that power of attorney examined by the respondent has stated that dhura was broken in 1982. According to him, when the date of cause of action has not been proved and parties are in possession of same land since 1965 onwards, the limitation of 12 years is bound to apply and suit ought to have been dismissed as time barred. Shri Gaikwad, Advocate for the appellants 3 has contended that power of attorney was not competent to depose on the part of his wife. He further contends that in such circumstances, in order to find out whether party is in possession of additional land or not and what is reason for such possession, whether it is on account of natural addition to land or not, are all questions which need to be looked into only by the Collector and Civil Court has got no jurisdiction. Shri Mohta, Advocate for the respondent states that question about jurisdiction of Civil Court as also competence of power of attorney has been raised for the first time in this Second Appeal. He contends that there is a finding of fact that the land in possession of present appellants – defendants was more than to which they are entitled and land in possession of present respondent – plaintiff is less than to which she was entitled. He contends that in view of these findings of fact, no question of law arises in present matter. The respondent – original plaintiff being a lady, her husband has entered the witness box. Nothing has been brought on record to show that he was personally not aware of the facts. Merely because he was power of attorney holder, his competence cannot be doubted. The contention 4 that principal ought to have been examined is without any merits. Similarly, the case is for removal of encroachment, as such the Civil Court was competent to take cognizance of such an issue. The stand that land was alluvial and therefore, the Collector alone would have taken cognizance is without any basis, in the absence of any such pleading and also without any evidence on record. The Commissioner was appointed and the Commissioner has verified the site after giving due notice to both parties. The Commissioner has reported that there is an encroachment. There is a finding of fact that area in possession of present appellants is more than the area to which they were entitled and area in possession of present respondent was found to be less. On the basis of this material, the land of present respondent is found to be in possession of present appellants and both the Courts have accordingly decreed the suit. Mere long or continuous possession, without any assertion of hostile right, cannot oust the claim of present respondent – plaintiff for restoration of possession. In measurement conducted, the excess possession of appellants – defendants has been noticed. On the basis of this material, the finding of encroachment accordingly reached, cannot be 5 labelled as perverse. No substantial question of law, therefore, arises for consideration in this Second Appeal. Second Appeal is, therefore, dismissed. However, in the circumstances of the case, there shall be no order as to costs. JUDGE *GS.