1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No.216/2010 Ramdas Bhanudas Pawar ..vs.. Kachru, Tuljaram Jadhao =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Shri Rugved Dhore, advocate for appellant. Shri S.S.Deshpande, advocate for respondent C ORAM : SMT. VASANTI A NAIK,J. DATED : 7th June, 2010. Heard learned counsel for the parties. The appellant is the original defendant. The suit was filed by the respondent/ plaintiff for removal of encroachment and possession. According to the plaintiff his father had purchased one guntha of land from the father of the defendant / appellant. The plaintiff pleaded that the defendant had illegally constructed a tin shed on one guntha of land and encroached the property purchased by the plaintiff’s father from the father of the defendant. The defendant denied the claim of the plaintiff. It was pleaded by the defendant that his father was the owner of the five gunthas of land and only ½ guntha of land was sold to the plaintiff. Defendant denied claim of the plaintiff in regard to encroachment. The defendant pleaded that the defendant and his other brothers were the owners and possessors of the 4 ½ gunthas of land after the death of their father. The trial and the first appellate court on an appreciation of the evidence on record concurrently held that the plaintiff had succeeded 2 in proving that the defendant had encroached upon the suit land. The courts while considering the evidence on record mainly relied on the evidence of defendant Ramdas in his cross examination as he had admitted that he had made the permanent construction over 3 ½ gunthas of land and had constructed a tin shed on the western side of the permanent construction over one guntha of land. Since the aforesaid a fact about the construction on one guntha of land by the defendant himself was admitted by the defendant in his cross- examination, there was no question of proving the encroachment on the basis of a survey report. The matter was rightly decided by the courts against the appellant on the basis of the evidence and especially on the basis of the admission of the defendant/ appellant in his cross examination. Since the defendant Ramdas had admitted in his cross- examination that he had himself made the permanent construction on 3 ½ gunthas of land and had also constructed a tin shed on one guntha of land on the western side of the permanent construction, it was apparent that it was the defendant who had encroached upon the land of plaintiff. In such circumstances, in view of the aforesaid admission, it cannot be said that the brothers of the defendants were necessary parties to the suit. The findings recorded by both the courts are pure findings of facts based on a proper appreciation of material evidence on record. They do not give rise to any substantial question of law. The second appeal is therefore, dismissed with no order as to costs. JUDGE SMP