{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.865 OF 2002 1. The State of Maharashtra Through Department of Agriculture Mantralaya, Bombay by its Secretary, 2. The Collector, Aurangabad 3. The Superintending Agricultural Officer, Adalat Road, Aurangabad APPELLANTS VERSUS Tajmul Hussain Mulla Mumtaz Hussain Age-65 years, Occ-Agri & Business R/o Jamil Palace, S.No.9, Shahnoorwadi, Tq & Dist-Aurangabad RESPONDENT ....... Mr. N.N.Jadhav, AGP for appellants State Mr. N.K.Kakade, Advocate for the respondent ....... [CORAM : A.V.POTDAR, J.] DATE: 17th March 2010 ORAL JUDGMENT: 1. This first appeal is directed by the State of Maharashtra, particularly Superintending Agricultural Officer, Aurangabad against the judgment and decree dated 26.06.2002 {2} passed by Civil Judge Senior Division, Aurangabad in Special Civil Suit No.634/1996. It appears that the appeal was admitted on 25.09.2002. 2. Heard learned AGP for appellants state and Mr.Kakade for the respondent. Both the learned counsel took me through the entire record and proceedings so also the impugned judgment and decree. 3. Before considering the rival submissions, it is necessary to consider the pleadings of the parties. 4. It appears that the respondent – plaintiff had filed a suit for possession of the property described in the title of the suit claiming that he is the owner of survey No.11 admeasuring 7 Acre 18 Gunthas. To the western side of survey No.11, survey No.1 is situated, which at the material time was in possession of appellant No.3. It further appears that the said survey numbers were later on converted into city survey numbers and were renumbered. As per the particulars given in the plaint, the portion which is in occupation of the appellant No.3, at the time of institution of suit, is survey No.16038. It is alleged that the respondent has applied to the competent authority for NA permission and accordingly plan was submitted for sanction which was also sanctioned by the competent authority vide letter dated 19.11.1994. It appears that on 25.08.1989 an application was moved before the District Inspector {3} of Land Records (DILR), Aurangabad to carry out the measurement of property survey No.11. Accordingly, the property was surveyed and a map was prepared by the officers of DILR office, after due notice to the adjacent owners. It further appears that in the year 1993, again an application was moved before the DILR by the respondent to carry out the measurement of the said land. During this measurement, it was noticed that appellant No.3 has encroached on 10 guntha land of the respondent from survey No. 11. After coming to know about the said encroachment, notice, as required u/s 80 of the Civil Procedure Code, was issued to appellant No.3 on 30.07.1996 for removal of the said encroachment and to hand over the vacant possession of the said land to the respondent-plaintiff. On receipt of the said notice, the same was replied by the appellants through Government Pleader. It is contended that the contents of the notice are incorrect and no such encroachment is done by the appellants on the said land. As inspite of the notice, encroachment was not removed and instead appellant No.3 started construction of compound wall, a suit was filed for removal of encroachment and for possession of the said land. In the said suit an application was also moved for temporary injunction. In response to the summons, the appellants appeared in the suit and filed their written statement (Exhibit-15). In the said written statement the appellants have not disputed that the land in possession of appellant No.3 is situated on eastern side of the land of the respondent. However, the appellants have disputed the ownership of the land survey No.11. So far as measurement {4} carried out at the instance of the respondent is concerned, according to the appellants, at the time of measurements, as alleged in the year 1989 and 1993, no notice was issued to them, as required to be issued as per the provisions of Maharashtra Land Revenue Code and hence they are not aware that any such measurement was carried out by the DILR. It is specifically denied that the appellants have encroached on 10 Guntha land of the respondent in survey No.11. According to the appellants, CTS numbers mentioned in the plaint were not correctly mentioned by the respondent. The appellants have not denied in the written statement that the notice was served u/s 80 of the Civil Procedure Code on them, however according to the appellants, they have replied the same through government pleader on 18.09.1996. According to the appellants the contents in respect of encroachment on the land of respondent are incorrect statements of fact and as per the appellants, the land occupied by appellant No.3 was purchased by them somewhere in the year 1962 and since then the appellants are in possession of the same. Hence, according to the appellants as there is no encroachment on the land, they prayed for dismissal of the suit. 5. Record and proceedings shows that on the basis of pleadings issues were framed by the learned trial judge and the parties were directed to lead evidence in support of their contentions. It further appears that in support of the case, the respondent examined himself along with two surveyors who had {5} carried out the measurement in the year 1993 as witness No.3 for the respondent – plaintiff. At the same time the measurement carried out in the year 1989 was also got proved by examining the concerned person from the office of DILR. In the evidence of respondent, the respondent has also produced document of title so also the documentary evidence in respect of notice before measurement carried out on the application of the respondent as well as the Panchanama and map of measurement from the office of DILR. In support of the case of the appellants, the appellants have examined two witnesses i.e. one who was in-charge of the office of appellant No.3 in the year 1996 and another to produce the sale deed of the year 1962. On the basis of the said evidence, learned trial court was of the view that the respondent-plaintiff has proved his title to the encroached portion as well as entire land in survey No.11. The trial court also came to the conclusion that the encroachment of 10 Guntha land is stand proved, as encroached by the appellant No.3. However, so far as prayer for mesne profit is concerned the same is rejected. Being aggrieved by the said judgment and decree the defendants therein, preferred this first appeal. So far as rejection of claim of mesne profit, no cross appeal is filed by the respondent-plaintiff and hence that issue need not be considered in this appeal. 6. Considering the submissions advanced across the bar, it has to bear in mind that it is not disputed that the respondent – plaintiff is the owner of survey No.11. Appellant No.3 is having {6} adjacent land survey No.1, which is situated on western side of the property owned by respondent – plaintiff. It is also not disputed that the land in possession of the appellants is acquired under the registered sale deed of the year 1962, which is produced by respondent No.2, examined on behalf of defendants. It is also not disputed that witness No.1 examined on behalf of defendants, Ashok Naik, was in service of appellant No.3 one year prior to the date he stepped into witness box and was giving evidence on the basis of documents available with his office. In the premise, as there is no dispute in respect of title of respondent – plaintiff, the core question required for consideration is that whether as per the evidence given by the witness No.2 Punjaram and No.3 Sayyad whether they have carried the measurement after following the due procedure as per the Maharashtra State Land Revenue Code and whether the documents produced by him were rebutted in cross examination or not. 7. Considering the submission as well as perusal of the evidence of the witnesses examined on behalf of plaintiff- respondent, it is clear that it transpired from the evidence of witness No.2 Punjaram that before carrying out the measurement in the year 1993, notices were issued to the Director of appellant No.3. However, the said date was required to be postponed and hence notices were served on the adjacent land owners on 20.08.1993. The said notice was received by the director of appellant No.3 on 27.08.1993. Thus, notice at Exhibit-53 stand {7} proved from the evidence of witness Punjaram. In the premise, the contention that the measurement carried out without notice to the appellant No.3 is not acceptable, as the measurement was carried out after following due procedure of law and after serving notice of measurement on the adjacent land owners. So far as cross examination on this point is concerned, except suggestion that no such notice was served and the person, who had received the notice has not put seal and signature below the same there is no other cross examination on the point of receipt of notice. Hence, the contention of the appellants that no notice was served on them before carrying out the measurement, is not accepted. 8. Now the question arose about the correctness of the measurement carried out by witness No.2 as well as one Shaikh Osman, who carried out the measurement in the year 1989. Witness Punjaram, is the person who measured the land in the year 1993. The encroached portion is separately shown in the said measurement, however, the area of that encroachment is not given, which finds place in the evidence of PW-3 through whom the respondent got proved the measurement carried by Shaikh Osman, who was working as maintenance surveyor in the office of DILR in the year 1989. The map Exhibit-57 was got proved by the respondent through witness No.3. Careful perusal of the cross examination of witnesses No.2 and 3 examined on behalf of the respondent, discloses that other than suggestion of false preparation of this map of encroachment, no clinching cross {8} examination suggesting the point fixing boundaries, point fixing the area of survey No.11 from the original record and though there are remarks in Exhibit-57 that the point showing the original boundary marks and the point showing where there are no boundary marks, but were fixed with the help of plaint table system of measurement as provided under the survey manual the measurements were carried out. There is no cross examination on these points on behalf of the appellants – defendants. In the premise, there is no reason to disbelieve the evidence given by PW-2 and 3. 9. From perusal of the judgment of the trial court it appears that the evidence of PW 2 and 3 is thoroughly discussed and consider in para No.13 to 17. On perusal of the discussion and appreciation of the oral evidence of the said witnesses so also the documents produced by them, it is observed by the trial court that this evidence was not shaken during the cross examination. Considering the fact that it is urged by the appellants that the measurement was carried out without notices and the measurement are faulty, however, the learned AGP is unable to point out as to why the notices (Exhibit-53), which were served, to be disbelieved and how the evidence given by witnesses No.2 and 3 examined on behalf of the respondent, was otherwise appreciated and require interference by this Court. As this is the first appeal this court requires to take into consideration the facts and the evidence before the trial court. Considering the factual and legal {9} aspects, on which finding of issue No.2 and 3 were drawn by the learned trial court this Court does not feel that any interference is required in the judgment and decree impugned in the first appeal. 10. In the premise, the only conclusion to be drawn is that the appeal requires to be rejected. Accordingly, the First Appeal No. 865/2002 is hereby dismissed. Considering the peculiar facts and circumstances of the case, there will be no order as to costs. 11. Decree in terms of the above order. [A.V.POTDAR, J.] drp/A10/fa865-02