(1) SA. 208.1989 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.208 OF 1989 1. Shivaji S/o Ananda Aged : 20 years, Occu.:Agri., R/o Marwali, Taluka Biloli (Previously a minor under the guardianship of his real father Ananda s/o Maroti and now became major) 2. Ananda S/o Maroti, aged : 45 years, Occu.:Agri., R/o As above (died through LRs.) i. Anusayabai w/o Ananda, aged 38 years, Occu.:Household, R/o Marwali, Tq. Biloli ii. Prayagbai w/o Ananda, Aged: 40 years, Occu.: Household, R/o Marwali, Tq. Biloli iii. Madhukar S/o Ananda, aged: 22 years, Occu.: and R/o as above iv. Sudhakar S/o Ananda aged: 18 years, Occu.: and R/o as above v. Shivaji S/o Ananda, aged: 25 years, Occu.: Agri., R/o as above (already on record as resp. no.1) vi. Vasant S/o Ananda, aged: 22 years, Occu.: Agri., R/o Marwali, Tq. Biloli vii. Prakash S/o Ananda, Aged: 20 years, Occu.: and R/o as above (2) SA. 208.1989 viii. Keshav S/o Ananda, Aged : 18 years, Occu.: and R/o As above ix. Shobha w/o Shivaji, aged : 19 years, Occu.: Household r/o Aluwadgaon Tq. Biloli 3. Dattahari S/o Maroti, Aged : 50 years, Occu.: Agri. R/o as above .. Appellants (Orig. Defendants) VERSUS Shankar Narhari died through his LRs. i) Awadumbar s/o Shankar-Mungilwar Age : 38 years, Occu.: Agri., R/o Morwali, Tq. Biloli ii) Gopalkrushna S/o Shankar Mungilwar, Age : 36 years, Occu.: Business, R/o as above iii) Prakash S/o Shanakr Mungilwar, Age : 24 years, Occu.: & R/o. as above iv) Nandabai d/o Shankar Mungilwar, Age : 22 years, Occu.: Household, R/o As above .. Respondents (Orig. Plaintiff) WITH CIVIL APPLICATION NO. 2956 OF 1989 IN SECOND APPEAL NO. 208 OF 1989 Shivaji S/o Ananda and others .. Applicants VERSUS Shankar S/o Narhari .. Respondent Mr. R.S. Deshmukh, Advocate for the appellants Mrs. M.A. Kulkarni, Advocate for the respondent no.1(i), 1(ii),1(iii) and 1(iv) ... (3) SA. 208.1989 CORAM : A.V. NIRGUDE, J. DATED : 4TH MARCH, 2010 ORAL JUDGMENT:- 1] Mrs. Kulkarni, ld. Advocate appearing for the respondents informs that her Vakalatnama filed on behalf of the respondents' legal representatives is not accepted by the Office on the ground that name of one of the LRs of respondent no.1, is incorrectly mentioned. Having regard to the facts of the case and the names of the parties, it is clear that the respondent no.1/3 Prakash could not have been different than the person who signed the Vakalatnama in the name of Shripad S/o Shankar. It is thus, clear that Prakash S/o Shankar Mugilwar is also known as Shripad Shankar Mugilwar. It is no-one's case that the respondent had one more legal representative by name Shripad. So, Smt. Kulkarni is considered appearing for all the respondents. 2] This Second Appeal is filed challenging the judgment and decree passed by the learned 2nd Additional District Judge, Nanded in Regular Civil Appeal no. 23 of 1983 dated 23.3.1989. By this judgment, the learned Judge of the first appeal Court decreed the suit of the respondent which hitherto was dismissed by the trial Court. (4) SA. 208.1989 3] The cause of action for the litigation was as under:- . The respondent-plaintiff contended that as per the description in title deed of his land survey no. 149/6, it had area of 3H 31 R. He said he purchased this land way back in 1925. He said on his west side, the appellant's land survey no. 149/4 is situated. He said in May, 1978, the appellant tried to cause interference in his cultivation and so, he filed suit for declaration and injunction. In 1980 or so, he made amendment to the plaint and contended that on 22.6.1980, the appellant made encroachment on his land to the extent of 72 R. He, therefore, sought additional prayer of recovery of land of 72 R. As against this, the appellant/defendant came up with a case that he had purchased his land admeasuring 3H 31R survey no. 149/4 from the original owner one Narayan in the year 1965. He said he is in possession of his land since he purchased and made no encroachment on the respondent's land. He also asserted that an old boundary (dhura) was in existence between the two lands and the same has not been disturbed at all. He however, added that the respondent never possessed area of 3 H 31R but always possessed area measuring 2H 59R. He said on his application, the competent authority took measurements of land and found that the area in possession of the respondent was only 2H and 59R and accordingly, they corrected the record. He also suggested that when the measurements were taken, he (5) SA. 208.1989 himself was found in possession of the area of 3H 64R and accordingly, the area was corrected. He said, he made no encroachment at all. In the alternative, he also suggested that if at all he was found in possession of the land belonging to the respondent, he has perfected the title by adverse possession. . The trial Court recorded evidence, took certain documents on record. Although there is no clear evidence on record on this fact, but it is common ground between the parties that sometime prior to 1977, the Revenue Officers took measurements of the lands for 'consolidation scheme' and as per the measurements, the lands were re-numbered giving them "gat" numbers instead of survey numbers. The land of the respondent-plaintiff was given gat no. 440, whereas the land of the appellant was given gat no. 439. Exhibit 41 and exhibit 79 are the certificates issued after the lands were remeasured sometime in 1975-1976. These certificates show that the area the land of the respondent-plaintiff was found 2H 59R and the land of the appellant was found having area of 3H 64R. On the basis of this, the appellant made an application to the Revenue Officer for correcting the revenue record of his land as far as the area was concerned. The Revenue Officer accordingly, made mutation. Record of mutation is at exhibit 42. The Revenue Officer accepted the case of the appellant and corrected the area which was previously shown. It is mentioned in this mutation order that earlier the land of the appellant was shown to have area of (6) SA. 208.1989 2H 91R and after mutation it should be shown having area of 3H 64R. As if this was not enough; in the same order, the Revenue Officer also corrected the area of the respondent's land. He said that previously, the respondent's land was shown having area of 3H 32R. but now it would be reduced to 2H 59R. Indeed, this mutation was effected pursuant to the data made available on record after the measurements were taken in the year 1975-1976. From the contents of the mutation order Ex. 42, the most glaring defect in the case of the appellant has come forth. It is clearly stated in this order that the area of the land purchased by the appellant was as per the revenue record 2H 91R. This was never his case. He always said he had purchased the land in 1965 having area of 3H 31R (8 Acre 7 Guntha). But the revenue record never showed the area of his land as 3H 31R. It always showed his land having area of 2H 91R. The old toch-map of the land of the respondent drawn in 1963 is at exhibit 71. It showed the area of 8A 8G, whereas the old toch-map of the appellant's land drawn in 1964 shows his land's area as 2H 91 R. The toch-map of the appellant's land was not exhibited earlier but by consent of the parties, the map is exhibited and is given exhibit no. 71/1. It is significant to note that exhibit 71/1 showed the holder's name as Narayan Krishnaji-the vendor of the appellant. If in 1963, the vendor of the appellant had in his possession land admeasuring 2H and 91 R he could not have sold more land to the appellant and (7) SA. 208.1989 the land could not have had more area than 2H and 91R. In this background, one has to appreciate the cases of the parties. As said above in 1975-1976 when the measurements were taken the area of lands of both the parties were found different. On the basis of this, the learned Judge of the first appeal Court rightly concluded that the respondent was not only entitled to declaration that he was the owner of area admeasuring 3H 31R, but he rightly concluded that the area of 72 R which was not found in his possession now, went in possession of the appellant and thereby, recorded his finding that the appellant had encroached on the respondent's land to the extent of 71 R. 4] The learned Advocate appearing for the appellants tried to contend that by taking measurements of only two lands namely survey no. 149/6 and 149/4, one may not jump to a conclusion that the excess area found in possession of the appellant came from only the land of the respondent. He said that old survey no.149 had number of hissas as suggested by the hissa numbers. He also asserted that the excess area found in possession of his client could have been parts of lands of other hissas. He thereby, suggested that unless the entire land survey no.149 was measured, there could not have been a conclusion that his client had encroached on land survey no. 149/6. The answer to this argument (8) SA. 208.1989 is simple and it is found in the mutation order Ex. 42. The Revenue Officer rightly took into account these two lands for effecting the mutation. He readily recorded his finding that the area which he found reduced from the land survey no. 149/6, was increased in land survey no. 149/4. He took this entry only after taking measurements of the lands. Had he found that the excess land in possession of the appellant came from some other hissa than the land survey no.149/6, he would have recorded so in his order and he would have also directed the mutation accordingly. In the absence of such recored/finding, the finding of the learned Judge of the first appeal Court, cannot be held to be incorrect. 5] In view of this, this Second Appeal would fail. The Second Appeal stands dismissed. Consequently, Civil Application no. 2956 of 1989 also stands dismissed. 6] The effect of this judgment is stayed for a period of six weeks from the date of signature. Sd/- (A.V. NIRGUDE, J.) arp ok