(1) FA. 271.2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 271 OF 2006 Khaja Moizoddin Anwar S/o Khaja Faridoddin, Age : 48 years, Occu.: Business, R/o Kalamnuri, Tq. Kalamnuri, Dist. : Hingoli .. Appellant VERSUS 1] Mrs. Bano Begum w/o Shaikh Maheboob, Age: 35 years, Occu.: Household, R/o. Hingoli, Tq. Hingoli, District : Hingoli 2] Mrs. Kausar Begum w/o Shaikh Nehal Qureshi, Age : 25 years, Occu.: Household, R/o. Kalamnuri, Tq. Kalamnuri, District : Hingoli 3] Abdul Gani Alias Kathu S/o Fateh Mohammad, Age : 70 years, Occu.: Agri., R/o. Bhoi Galli, Kalamnuri, District : Hingoli .. Respondents AND CIVIL APPLICATION NO. 1672 OF 2006 IN FIRST APPEAL NO. 271 OF 2006 Khaja Moizoddin Anwar .. Applicant VERSUS Mrs. Bano Begum W/o Shaikh Maheboob and ors. .. Respondents Mr. N.E. Deshmukh, Advocate h/f. Mr. S.B. Talekar, Advocate for the Appellant/Applicant Mr. A.S. Bajaj, Advocate for respondent no.2 Second Appeal dismissed as against respondent no.1 vide Court's order dated 21.4.2009 None present for respondent no.3 though served ... (2) FA. 271.2006 CORAM : K.U. CHANDIWAL, J. DATED : 30TH APRIL, 2010 ORAL ORDER:- 1] Heard. By consent of the parties as agreed earlier, the matter is finally heard. Record available browsed by both the sides. The plaintiff sued the defendant for recovery of possession of land admeasuring 84 feet North-South, 41 feet towards South and 37 feet towards North bounded as East-West Part of land survey no. 2/A of plaintiff, North Survey no.3 of the plaintiff and South Hingoli Nanded road, out of survey no.2/A situated at Kalamnuri, Tq. Kalamnuri, Dist. Hingoli ("suit property") and also for mesne profits. The plaintiff asserts, the sale deed in favour of the defendant nos. 1 and 2 executed by the defendant no.3 is illegal, null and void and sought mandatory injunction. 2] After hearing the counsel extensively following points arise for my consideration:- [i] Whether the plaintiff has established that there was an encroachment carried out either by defendant nos. 1 and 2 or by defendant no.3 Abdul Gani concerning the land owned by the plaintiff from survey no.2/A? [ii] Whether the appreciation of evidence by the learned Civil Judge Senior Division, Hingoli is in tune with the record, or suffers from perversity? (3) FA. 271.2006 3] My findings, to the above points are (i) The plaintiff failed to establish that it was his portion of the land as referred hereinbove from survey no. 2/A, allegedly encroached upon by defendant no.3 or for that purpose by defendant nos. 1 and 2. (ii) The findings recorded by the Court are in tune with the evidence and the record, no eventuality of any perversity. 4] The admitted position is the plaintiff has purchased 15-1/2 guntha of land from survey no.2/A by sale deed dated 4.4.1990, showing 4 boundaries thereof as to East survey no.2-B of vender, west land of Khaja Jahihroddin Babar, North-Survey no.3 of the plaintiff and South-Government road. However, the plaintiff during his evidence has gone to the extent of saying that west side boundary of the purchased land is shown wrongly in his sale deed. The cadestral surveyor Shri Satish Ghan was examined on behalf of the plaintiff. He issued notices to some of the land owners adjoining to the property. The cadestral surveyor accepted that there were different plots illegally demarcated either by the plaintiff or by his brother or a camouflage situation is apparently created. The evidence of the plaintiff is to be read. What the cadestral surveyor has said also is of wide importance. In the cross-examination he accepts of filing Regular Civil Suit no. 27 of (4) FA. 271.2006 1983 concerning survey no.2-B which was withdrawn. His land according to him, is survey no. 3 is shown to the north side of survey no.2/A. Land admeasuring 3-1/2 R out of survey no.2/A is in his possession. He says Hafeezbhai is in possession towards eastern side. There is cinema talkies of Hafeezbhai since 1995. Saira Khatoon is in possession towards eastern side of cinema talkies and thereafter there is possession of Bano Begum. Bano Begum is defendant no.1 in the present proceedings. He accepts that after defendant no.1, the lands of Gajre, Appa and Gaikwad are situated. In the later part, he accepts that his brother sold plot out of his land without there being any non-agricultural permission. There is a pandhan (nala) towards western side of survey no.2-A. It is an accepted position that before land belonging to the defendant no.1, there is nala (pandhan). If this is the situation, it hardly is acceptable that the defendant nos.1,2 or the defendant no.3 could encroach upon or took possession of the property allegedly owned by the plaintiff. The 7/12 extracts also are contrary to what the plaintiff asserts as plaintiffs and defendants are in possession of survey nos.2/1,2/2, 2/3 while the plaintiff's assertion is of survey no.2/A, 2-B. 5] The defendant nos. 1 and 2 have purchased the portion of the property from defendant nos. 2-B from defendant no.3 on 20.11.1999 for a consideration (5) FA. 271.2006 of Rs.1,80,000/-. After such purchase, by virtue of application to the Municipal Council, Kalamnuri the defendants constructed on the said area of the plot purchased. The plaintiff allowed such construction to be carried on and thereafter has filed suit on 4.11.1990. It is obvious since the plaintiff accepts that there was construction already effected by the defendant nos. 1 and 2, in a suit seeking possession, He should have sought removal of the said construction. The plaintiff has simply sought removal of encroachment as indicated hereinabove. 6] When the plaintiff pleads to be owner and possessor of survey no.2/A or 2/1 admeasuring 62R, 2- B, 2/2 admeasuring 62 R of the land, it is difficult to digest that the defendants could encroach upon the property from either survey no.2/A or survey no.2/1, by overlapping, leaning in between portions of the other persons. The unusual sale of different plots by the plaintiff or his brother has added to the worst miserable situation creating cloud as to actual area. Plaintiff now wants to bank upon the area of defendant no.3 or defendant nos. 1 and 2. 7] The possession or the enjoyment of the property by the defendant no.3 is by virtue of a mutation entry no.530 dated 2.7.1968 to the extent of 1H 21R as indicated in the 7/12 extract at exhibit 58, having purchased in 1966 and defendant no.3 has (6) FA. 271.2006 after converting the user to non-agricultural user sold portion of the lands to the defendant nos. 1 and 2. This is so supported by the document and the oral evidence. Taking survey of above facts, I find that the plaintiff failed to establish that there was an encroachment as indicated hereinabove carried by defendant no.3 or by defendant nos.1 and 2. The evidence of T.I.L.R. will not come to the assistance of the plaintiff. 8] There is no illegality on the part of the learned Judge in appreciation of the evidence which is in tune with the documents. First Appeal sans merit, dismissed. No costs. Civil Application no. 1672 of 2006 also stands dismissed. Sd/- (K.U. CHANDIWAL, J.) arp