1 S.A. No. 1524.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 1524 OF 2004 Guruwarya Dadasaheb Donde Co-operative Low Income Housing Society Ltd., Deopur Dhule .. APPELLANT VERSUS Jabedabai W/o Ismail Khimani died through her legal representatives ..RESPONDENTS ... Shri. D.R. Shelke, Advocate for the appellant Shri B.R. Warma, for respondent No. 1-C to 1-D CORAM : S.V. GANGAPURWALA, J. DATE : 20h December, 2010. PER COURT : This is defendant’s Second Appeal. The plaintiff had filed a suit for possession in respect of the encroached area admeasuring 44 R. The trial Court decreed the suit. The defendant preferred an appeal. The appellate court dismissed the appeal, confirming the Judgment and Decree passed by the trial Court. 2 S.A. No. 1524.04 2. Shri D.R. Shelke, the learned Counsel for the appellant strenuously contended that the plaintiff has not proved the title over the property which he admittedly claims i.e. Survey No. 39/2, in absence of proof of title the plaintiff is not entitled for any relief. According to the learned Counsel, the defendant is the owner and possessor of land Survey No. 39/1, admeasuring 12 Acres and 20 Guntha which they have purchased by registered sale-deed on 21-06-1966. Plaintiff claims to have purchased the property in the year 1962, no such document of title is produced on record. Shri Shelke, learned Counsel further contended that the measurement which is relied by the Courts is not done as per the Rules. The measurement manual has to be followed scrupulously by the surveyor. There are lot of anomalies in the evidence of surveyor. He has conducted the measurement from south to north, in fact it has to be conducted from North to south. It has further been contended by the learned Counsel that all adjoining survey numbers are to be measured to 3 S.A. No. 1524.04 carve out the encroachment, as this has not been done, the measurement is erroneous. 3. It is also contended by Shri Shelke, learned Counsel that the defendant has perfected his title by adverse possession, as the suit has been filed after 14 years. For the said purpose the learned Counsel relied on the Judgment of the Apex Court in a case of “Balkishan V/s. Satyaprakash & others, reported in 2001(1) SC 336”. According to the learned Counsel the evidence has not been properly appreciated by the Courts below. As it is a case of perversity, this Court in Second Appeal can examine the same. For the said purpose he relied on the Judgment of the Apex Court in a case of “Bondar Singh & others V/s. Nihal Singh & others, reported in 2003(2) SC 512”. 4. Per Contra, Shri Warma learned Counsel for the respondent supported the Judgments on the ground that both the Courts on appreciation of evidence and the evidence of surveyor have concurrently held the encroachment to be proved. 4 S.A. No. 1524.04 The title was not disputed by the respondent, specifically even in their pleadings. Further according to him, concept of adverse of possession would not be applicable as the same should be hostile and to the knowledge of real owner. 5. With the assistance of learned Counsel I have gone through the Judgments delivered by both the courts. The lower appellate court in para No. 7 of its Judgment has observed that apart from the fact that the plaintiff name appears in the 7/12 extract,the defendant has not specifically denied the ownership of the plaintiffs in the written statement. 6. In view of that, the issue of title was not framed by the Courts below, so also it is undisputed that the defendant society is owner of survey No. 39/1. The issue germane to the present proceedings is about the alleged encroachment and whether the defendant in alternate proved his title by adverse possession. The measurement of whole survey No. 39 was 5 S.A. No. 1524.04 carried out which is evident from the evidence and the observation of the Courts below. Survey No. 39/1 and 39/2 are part of survey No. 39. In that light of the matter, the whole survey number was measured. It has also come on record that the Tipan from the original file was available at the time of measurement, it was not only on the basis of Wahiwat the measurement was conducted. All these factors were considered by the Courts below. Both the Courts on appreciating the evidence of the surveyor have concurrently held that the encroachment is proved. 7. Regarding the concept of adverse possession, a longstanding possession of any length of time may not be sufficient to perfect the title by adverse possession. In case of “ Bondar Singh & others V/s. Nihal Singh & others“ referred supra the Hon’ble Apex Court held that, even after order passed by the Tahasildar and other authorities, possession was continued and in that light it was held that the party has perfected title by adverse possession. In the present case, the defendant no where says that it 6 S.A. No. 1524.04 was within the knowledge of the plaintiff the factum of their hostile possession. When the measurement was done it came to the knowledge of the plaintiff, the factum of possession of the defendant over the encroached area. So, the possession was not to the knowledge of the original owner. The owner till the land was measured did not know that the said encroachment. It cannot be said in such circumstances that the pleading of adverse possession would succeed. Both the Courts on this count have appreciated the evidence and have arrived at just conclusion. 8. The conclusion drawn by the Courts below is a plausible conclusion. The Second Appeal cannot be entertained on the ground that some other conclusion is also possible. As has been held by the Apex Court in a case of “Vidhyadhar V/s. Manikrao and another, reported in AIR 1999 SC, 1441”. 9. In the light of the same, Second Appeal being devoid of substantial question of law is dismissed. However, there shall be no 7 S.A. No. 1524.04 order as to costs. In view of the dismissal of the Second Appeal, the Civil Application is also disposed of. 10. At this stage, Shri Shelke, learned Counsel states that the appellant is a society wherein members may have constructed their homes, so time may be granted for giving possession of the encroached area. Shri Warma, learned Counsel does not seriously dispute said request. As such, the decree passed shall not executed for a period of six months. [S.V. GANGAPURWALA] JUDGE SDM*