-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 388 OF 2006 SECOND APPEAL NO. 388 OF 2006 SECOND APPEAL NO. 388 OF 2006 WITH WITH WITH CIVIL APPLICATION NO. 738 OF 2007 CIVIL APPLICATION NO. 738 OF 2007 CIVIL APPLICATION NO. 738 OF 2007 Shri Vasant Dattatre Godse .. Appellant. V/s. Smt. Meggi Mendessa .. Respondent. --- Mr. A.Y.Sakhare i/by Varsha Sawant for the Appellant. Mr.C.M.Kothari for the Respondent. --- CORAM : R. M. SAVANT, J. CORAM : R. M. SAVANT, J. CORAM : R. M. SAVANT, J. DATED : 05TH AUGUST, 2008. DATED : 05TH AUGUST, 2008. DATED : 05TH AUGUST, 2008. P.C.: P.C.: P.C.: 1. This second appeal takes exception to the judgment and decree dated 10.08.2004 passed by the learned District Judge, Dadra and Nagar Haveli at Silvassa by which the judgment and decree passed by the trial court dated 25.04.2001 in R.L.S. No. 19 of 1997 came to be confirmed. 2. The appellant herein is the original plaintiff who had filed the regular civil suit no.19 of 1997 for possession of the encroached portion of the land from the -: 2 :- defendant, admeasuring 33 sq.meters i.e. 11 meters in length on north sought and 3 meters in width on east west of the plot no. 176/3. 3. It was the case of the plaintiff that he purchased a plot admeasuring 800 sq. meters from one Mr. Kamlakar Gananand Kajrekar, who had purchased a plot admeasuring 1400 sq.meters from the respondent herein. It was further the case of the plaintiff that pursuant to the order of Sub-Division, the said plot admeasuring 800 sq. meters was given plot no.176/3 and the other plots which remained with the respondent were given plot nos. 176/1 and 176/2. 4. It was the case of the plaintiff that taking advantage of the absence of the plaintiff from the suit property, the defendant had encroached to the extent of 33 sq. meters on the plaintiffs plot. Per contra, it was the case of the defendant that she is in possession of the property in question since the time of her ancestors and that she is not aware of the purchase of the property by the plaintiff. It was further the case of the defendant that she never encroached upon the plot of the plaintiff. 5. The parties went to trial. The plaintiff filed -: 3 :- two reports, one being of the government surveyor by name Navnital P. Shah and the other report was of the plaintiff himself who was working in the survey department of the government. The plaintiff led the evidence of three witness. On the basis of the material that was adduced by the parties, the trial court came to the conclusion that the case of the plaintiff of encroachment by defendant was not proved and therefore, dismissed the suit of the plaintiff. The trial court did not accept the report of the surveyor -Navnital P. Shah on the ground that the said report was prepared in the absence of the defendant who was not asked to remain present on the site. The trial court also on the basis of the oral evidence of the plaintiff and the report of surveyor Mr.Navnital P. Shah, wherein both have deposed that the plaintiff is in possession of area of more than 800 sq. meters did not find any substance in the case of the plaintiff. The trial court, therefore, by judgment and decree dated 25.04.2001 dismissed the suit. 6. The plaintiff being aggrieved by the said judgment and decree dated 25.4.2001 filed an appeal being regular civil appeal no. 4 of 2001. The said regular civil appeal also came to be dismissed. The lower appellate court considering the evidence on record came to the conclusion that the findings recorded by the trial -: 4 :- court did not warrant any interference. 7. It is sought to be contended on behalf of the appellant that since the report of the surveyor Navnital P.Shah has not been accepted on the ground that the defendant was not present at the time of the measurement of the land and making of the report, the matter should be remanded back to the lower appellate court as also on the ground that the plea of adverse possession taken by the defendant has not been considered by the courts below. In my view the said submission cannot be accepted in view of the evidence adduced on behalf of the plaintiff himself, wherein as indicated above, it has come on the record that the plaintiff is in occupation of more than 800 sq. meters. In the context of the said orders both the courts below held that the plaintiff’s case of encroachment of 33 sq.meters could not be accepted. Insofar as the plea of adverse possession is concerned, the said plea is in reply to the notice issued by the plaintiff and as it is well settled that the plea of adverse possession is in the nature of a defence which operates as a shield since the plaintiff was not entitled to the relief sought in the suit, there was no question of considering the said plea of adverse possession taken by the respondent. Both the courts below having recorded findings of fact on the basis of evidence that was before -: 5 :- them, in my view, the second appeal does not involve any substantial question of law and is accordingly dismissed. 8. In view of the dismissal of the second appeal, civil application no. 738 of 2007 does not survive and the same is also disposed of as such. ( R.M.SAVANT, J.) .....