1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.607 OF 2006 1 Bajirao s/o Narayanrao Udadange, age: 74 years, Occ: Agriculture, 2 Kaduba s/o Nath Udadange, age: 64 years, Occ: Agriculture, 3 Kacharu s/o Nath Udadange, age: 44 years, Occ: Agriculture, 4 Tatya s/o Narayan Udadange, age: 34 years, Occ: Agril., 5 Prabhu s/o Eknath Barade, age: 34 years, Occ: Agriculture, 6 Ambadas s/o Ganga More, age: 28 years, Occ: Agriculture, 7 Shivdas s/o Ganga More, age: 50 years, Occ: Agriculture, 8 Rangnath s/o Sampatrao More, age: 79 years, Occ: Agril., 9 Dattu s/o Bajirao Udadange, age: 49 ears, Occ: Agriculture; 10 Digamber s/o Bajirao Udadange, age: 46 years, Occ: Agriculture; 11 Raghu s/o Bajirao Udadange, age: 42 years, Occ: Agril., 2 12 Baban @ Bhagwan s/o Bajirao Udadange, age: 34 years, Occ: Agril., 13 Vishwambhar s/o Kaduba Udadange, age: 39 years, Occ: Agril., 14 Bhivsan s/o Batya Udadange, age: 49 years, Occ: Agril., 15 Sheshabai w/o Shivdas More, age: 44 years, Occ: Agril., 16 Samindrabai w/o Rangnath More, age: 74 years, Occ: Agril., 17 Samindar s/o Digambar Udadange, age: 84 years, Occ: Agril., 18 Ram s/o Bapurao Dhandage, age: 39 years, Occ: Agril., 19 Ankush s/o Rajaram Navale, age: 44 years, Occ: Agril., 20 Sharadabai w/o Himmatrao Dheere, age: 36 years, Occ: Agril., 21 Sarubai w/o Marotrao Udadange, age: 77 years, Occ: Agril., 22 Himmatrao s/o Sudamrao Thore, age: 41 years, Occ: Agril., 23 Nadarbai w/o Marotrao Udadange, age: 76 years, Occ: Agril., 24 Mandabai w/o Bhaskarrao Tawar, age: 79 years, Occ: Agril., All above R/o Chandanpuri, 3 Tq.Ambad, District Jalna. 25 Haribhau s/o Marotrao Udadange, age: 36 years, Occ: Agril., R/o Chandanpuri, Tq. Ambad, At present Taka, Ambad, District Jalna. 26 Kasabai w/o Sudamrao Thore, age: 56 years, Occ: Labourer, R/o Ghodegaon, Tq. Paithan, District Aurangabad. 27 Sheshabai w/o Dadarao More, age: 52 years, Occ: Agril., R/o Chandanpuri, at present R/o Gola Pangri, Tq. And District Jalna. Appellants Versus Pralhad s/o Shahadeo Udadange, age: 58 years, Occ: Agriculture, R/o Chandanapuri (kh.), Tq.Ambad, District Jalna. Respondent Mr.B.G.Deshmukh, advocate for appellants. Mr.S.S.Bora, advocate for the Respondent. CORAM: R.M.BORDE, J. DATE : 01 st September, 2009. JUDGMENT: 1 Heard Shri B.G.Deshmukh, learned Counsel appearing for appellants and Shri S.S.Bora, learned Counsel for sole-Respondent. 2 Admit. 4 The substantial questions of law, those arise for consideration in the appeal, are : (i) Whether the first appellate Court was justified in granting decree in respect of removal of encroachment in respect of one are land, in the absence of details as regards the exact area alleged to have been encroached by each of the defendants. (ii) In the absence of details given by the surveyor in his report regarding alleged act of encroachment by each of the defendants along with particulars in respect of area, whether it was appropriate for the first appellate Court to pass decree in favour of the plaintiff. By consent of learned Counsel for respective parties, appeal is taken up forthwith for final hearing. 2 Plaintiff- Respondent herein instituted Regular Civil Suit No. 132/93 against total 27 defendants alleging that they have committed encroachment over an area to the extent of one are land out of land G.No.78 situate at village Chandanpuri, Tq. Ambad, District Jalna. Plaintiff claims that he is owner and possessor of land G.No.78 admeasuring 1 hectare 70 ares i.e. 4 acres 10 gunthas. Defendants are residing in gaothan area situate at southern side of plaintiff's agricultural property. It is alleged that defendants no.1 to 8 have damaged common boundary and encroached upon an area to the extent of one are out of land G.No. 78 falling towards southern side, in the year 1986. Defendant nos.20 to 27 have constructed a wall having length 7 to 8 feet towards southern side of land G.No.78. Defendant nos.18 and 19 were the persons who had helped in carrying out the construction. It is alleged that defendant nos.1 5 to 6 have kept thorny branches of tree in the area belonging to the plaintiff. All the defendants are occupying and enjoying possession of an area to the extent of one are which belongs to the plaintiff. Plaintiff has got his land measured through District Inspector of Land Records, Jalna. After measurement conducted by surveyor, it was found that defendants have encroached upon an area to the extent of one are from southern side out of land G.No.78. Plaintiff, as such, claims possession of encroached portion. 3 Defendants appeared and resisted the suit by filing written statement. Defendants questioned the measurement carried out by D.I.L.R.. According to them, they were not noticed prior to conducting measurement. Apart from this, it has been contended by defendants that neither the plaintiff nor surveyor has given details as regards extent of encroachment alleged to have been committed by each of the defendants. According to defendants, a general direction as against 27 defendants cannot be issued for removing encroachment in respect of one are land. 4 The trial Court, after appreciating the evidence placed on record by the parties, reached a conclusion that the plaintiff has failed to establish his case, as such, dismissed the suit by judgment and decree passed on 18.04.1998. Plaintiff, being aggrieved by the judgment and decree passed by the trial Court, preferred an appeal, being Regular Civil Appeal No.67/98, which came to be heard and disposed of by II Ad hoc Additional District Judge, Jalna, who was pleased to allow same by judgment and decree dated 17.12.2004. 6 5 I have perused the judgment and order passed by both the Courts below. It transpires on perusal of the record that so far as measurement carried out by D.I.L.R. is concerned, no notice was issued to all the defendants prior to carrying out such measurement. Although the witness has stated in his deposition that notices were transmitted to defendants, however, from the record it transpires that notices were served only on defendants no.11, 21, 22 and 25 and other defendants were not served with notice. The measurement carried out without notice to the defendants and in their absence, therefore, cannot be the basis for passing decree in respect of removal of encroachment against them. Another aspect of the matter is that the D.I.L.R. has not specified the extent of encroachment and dimension thereof in reference to each of the defendants. The plaintiff has arrayed 27 persons as defendants in the suit and has alleged that number of persons have committed act of encroachment over the land belonging to the plaintiff. It was for the plaintiff to specify extent of area alleged to have been encroached upon by each of the defendants, however, no such particulars are forthcoming. In the absence of specific case as regards the extent of encroachment by each of the defendants, it was not appropriate for the first appellate Court to pass a general order directing removal of encroachment by 27 defendants. The plaintiff has failed to put up his case with appropriate details. 6 Apart from absence of necessary particulars, plaintiff has also not placed on record the map along with his plaint showing the encroached portion alleged to be possessed by defendants. It is 7 necessary for the plaintiff to give rough sketch showing description of the property as well as showing encroached area in a map annexed to the plaint. It is necessary in the case, wherein the plaintiff claims removal of encroachment, to annex map along with the plaint showing situation of the property and details in respect of encroachment alleged to have been committed by defendants. Plaintiff has not placed the map along with plaint as mandated by provisions of Rule 3 Order VII of Code of Civil Procedure (Bombay amendment), which provides thus: 3. Where the subject matter of the suit is immovable property – Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. In case of encroachment a sketch showing as approximately as possible the location and extent of encroachment shall also be filed alongwith the plaint. Pleadings raised by the plaintiff in the plaint are deficient in respect of extent of encroachment alleged to have been committed by each of the defendants. In these circumstances, the first appellate Court ought not to have shown indulgence to the plaintiff and granted decree in his favour. The trial Court was justified in dismissing the suit presented by plaintiff on appreciation of evidence placed on record. 7 In the circumstances enumerated above, therefore, I am of the opinion that the appeal presented by appellants - defendants 8 deserves to be allowed and same is accordingly allowed. The judgment and decree passed by the first appellate Court on 17.12.2004 in R.C.A. No. 67/98 is quashed and set aside. Suit presented by plaintiff shall be deemed to have been dismissed. In the facts and circumstances of this case, there shall be no order as to costs. In view of this, pending C.A. No. 6495 of 2005 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa60706