1 S.A.NO.82 /2008. THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.82 OF 2008. Mirza Nazir S/o Mirza Karim Baig (Died) Through L.Rs. 1. Sahidabegum W/o Mirza Nazir Baig, Age: 70 years, Occu: Household, R/o Barud-ves, Jintur, Dist.Parbhani. 2.Mirza Shafat S/o Mirza Nazir Baig, Age: 45 years, Occu: Business, R/o. As above. 3.Mirza Bashrath S/o Mirza Nazir Baig, Age: 43 years, Occu: Business, R/o As above. 4.Mirsza Sujat S/o Mirza Nazir Baig, Age: 39 years, Occu: Business, R/o As above. 5.Mirza Raheman S/o Mirza Nazir Baig, Age: 37 years, Occu: Business, R/o As above. 6.Amanibegum W/o Mobesarkhan Age: 41 year, Occu: Household, R/o Sabun-ves, Jintur, District Parbhani. 7.Samiyunbegum W/o Mirza Muzahid Baig, Age: 35 years, Occu: Household, R/o Barud-Ves, Jintur, District Parbhani. 8.Wasimunnisa W/o Firoz Khan Age: 33 years, Occu: Household, R/o As above. 2 S.A.NO.82 /2008. 9. Mehrunnisa W/o Salim Khan, Age: 30 years, Occu: Household, R/o As above. 10.Allimunnisa Begum W/o Farhad Baig, Age: 28 years, Occu: Household, R/o Sabun-Ves, Jintur, Dist.Parbhani. ...Appellants. (L.Rs.of Ori.Plaintiff No.2) VERSUS 1.Union of India, Through Secretary of Communication Department, Telephone Wing, New-Delhi. 2.Bharat Sanchar Nigam Ltd., Through General Manager, Telecom (Marathwada Area), First Floor, Kothare Complex, Shivajinagar, Nanded. 3.Telecom District Manger, District Parbhani, Bharat Sanchar Nigam Ltd., Near Consumer Court, District: Parbhani. 4.Padminibai W/o Dattatraya Mohite, Age: 60 years, Occu: Household, R/o Jintur, District Parbhani Presently residing at Near Krishna Milk Dairy, Near Iron Bridge, Station Road, Ahmednagar, Distgrict Ahmednagar. (Dismissed as per Court’s order dtd.6/7/09) ...Respondents. (Respondent Nos.1 to 3- Ori.Defts. No.1, 2 & 2A) Respondent No.4-Ori.Pltff.No.1) 3 S.A.NO.82 /2008. ... Mr.S.S.Jadhavar,Advocate for the appellants. Mr.Alok Sharma, Standing Counsel for respondent Nos. 1 to 3. Respondent No.4-Dismissed as per Court’s order dated 6/7/09. ... CORAM: A.V.NIRGUDE,J. Date : 1st September, 2009. ORAL JUDGMENT: 1. At the admission stage, I am inclined to dispose of the appeal. The record of the Lower Court fortunately was already called and is before me. 2. Having perused the record of the lower Court, as well as after hearing both the sides, the question that arises for my consideration, in this appeal, is whether both the Courts below committed serious error in holding that the appellants/plaintiff No.2 had failed to prove the title to the suit land? 3. The factual background of the case, is as under: . Abutting Jintur-Parbhani road in the Town of Jintur, there exists a small triangular plot of land bearing survey No.125/3. It is the case of 4 S.A.NO.82 /2008. the plaintiffs that this land initially belonged to one Madhukar Deshpande, who sold it to the plaintiff No.1 in 1982 through a registered sale deed describing the land with it's boundaries and it's measurements. 4. The plaintiff No.1 found that since the land was abutting a public road, from north side, there occurred encroachment on it by legal representatives of one Bapurao. They are owners of the adjoining land on north side. While constructing a house on their land they encroached the north portion of the suit land to some extent. 5. On the east side of the suit land, land survey No.126 lies. Out of this land, 20 Guntha portion was acquired by the defendants No.1 and 2 for erecting certain station for the Department of Telecommunication. The plaintiff No.1 found that in the process of acquisition, the defendants No.1 and 2 not only occupied the land which they acquired from land survey No.26, but they also made encroachment on the suit land towards east. In view of the encroachment of 2 sets of parties, the plaintiff No.1 filed this suit for removal of encroachment, declaration of ownership and recovery of possession. During the pendency of the suit, the plaintiff No.1 sold this land to the plaintiff No.2. 5 S.A.NO.82 /2008. 6. During the pendency of the suit, the plaintiffs settled the dispute with the legal representatives of Bapurao, who had made encroachment on the northern portion of the suit land and withdrew the suit as against them. 7. Respondent Nos. 1 and 2 filed written statement and admitted that in the process of acquisition they wrongly occupied four Guntha area of land survey No.125/3. They however, did not admit that this land (survey No.125/3) belonged to the plaintiff. The respondents No.1 & 2 also stated in the written statement that after they realised that they had occupied 4 Guntha land of survey No.125/3 also they sent a proposal for acquisition of such land. They requested the Land Acquisition Officer to initiate proceedings for acquiring the said portion of land survey No. 125/3 also. But, there is nothing on record to show that notification under Section 4 or any other provisions of the Land Acquisition Act or such other Act, is issued so far, seeking acquisition of the suit land. 8. At the fag end of the trial, the appellants brought on record a measurement plan prepared by TILR showing the area occupied lawfully by the respondent Nos.1 and 2 and also the portion/they occupied from the land survey No.125/3. The 6 S.A.NO.82 /2008. respondent Nos. 1 and 2 admitted this map and so this map clearly proved that the respondents No. 1 and 2 had made encroachment on land survey No. 125/3 to the extent area of four R. The learned Judge of the trial Court rightly held so while deciding issue No.2. The learned Judge of the trial Court, however, held that the appellants could not prove their title to the land survey No.125/3. The learned Judge gave following reasons for giving this finding. "(i) That, both the appellants did not produce their original title deed, namely the sale deed before the Court. (ii) Both of them did not examine attesting witnesses to prove the title deeds. (iii) The original plaintiff No.1 did not enter witness box to prove her title." 9. Even the appellate Court while dismissing the appeal gave similar reasons to hold that the appellant had not proved his title of land survey No.125/3. 10. I think, both the Courts below made serious error in appreciating the facts and evidence on record. The learned Judges of the lower Courts ignored an important aspect of the case of the 7 S.A.NO.82 /2008. respondents viz: they did not claim ownership of land survey No.125/3. They specifically stated that they are owners of 20 Guntha portion of land survey No.126. In such background, when the appellant deposed before the Court saying that his predecessor, the original plaintiff No.1 had purchased the land from one Madhukar Deshpande and that he thereafter purchased it from the original plaintiff No.1, there was practically no reason why he should be disbelieved. Disbelieving this part of evidence is perversity in the appreciation of the evidence of both the Courts below. The respondents No.1 and 2 had simply denied the assertion of the original plaintiff No.1 and the appellant that they were owner of the suit lands. They even stated that they say so for want of knowledge. Had they stated that the land survey No.125/3 belonged to a third party and that the original plaintiff No.1 and the appellant had unauthorisedly occupied the suit land, then probably the appellant and his predecessor would have been obliged to prove their title to the hilt. In other words, there was practically no challenge to the title of the original plaintiff as well as the appellant to the suit land. Despite of this clear position, the learned Judges of the lower Court unnecessarily expected the appellant to prove title to the suit land. The appeal should, therefore, succeed. Second Appeal is allowed. 8 S.A.NO.82 /2008. 11. There shall be decree in terms of prayer clauses (1) & (2) of the plaint (Regular Civil Suit No.179/1985). 12. In addition to this the lower Court shall hold inquiry under Ordeder 20, Rule 12 of the Code of Civil Procedue, 1908 in respect of mesne profits. (A.V.NIRGUDE,J.) lkp