1 sa468­90 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION SECOND APPEAL NO.468 OF 1990 Dinkar Tukaram Jadhav & Anr. .. Appellants V/s. Saraswati Gopala Kumbhar & Ors. .. Respondents ..... Mr. S. S. Gokhale for the appellants. Mr. Madhav Jamdar for respondent No.2(1) to 2(6). ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 8, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the appellants. The appellants are the original plaintiff Nos.2 and 3. Respondent Nos.3 and 4 are the plaintiff Nos.1 and 4 and the respondent Nos. 1 and 2 are the defendants. It appears that during the pendency of the suit, the original plaintiff Nos.1 and 2 sold the suit property to the plaintiff Nos.3 and 4 and accordingly, an amendment was carried out to the plaint. Thus, the case made out in the amended plaint is that the plaintiff Nos.1 and 2 were the original owners of the suit properties and the plaintiff Nos.3 and 4 become the owners by a registered sale deed dated 15th March, 1984. Hence, the abatement of this Appeal as against the 2 sa468­90 third respondent (1st plaintiff) will not be of any consequence. 2. The suit was filed by the plaintiffs for injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit property described in paragraph No.1 of the plaint. The dispute is about the property described in paragraph No.1C of the plaint. The description of the property in paragraph 1C is open land measuring north south 22 cubits and on the west 9 cubits i.e. 37 feet 6 inches X 15 feet 9 inches. In paragraph 1C, it is stated that on the southern side of the property described in paragraph No.1C, there is a house of the defendants, on the western side there is a passage and on the northern side there is a house owned by one Gopal Ghadge. It is alleged that on the property described in paragraph No.1C of the plaint, the defendants tried to make an encroachment to the extent of 10 feet x 15 feet 9 inches. The averments made in the plaint are that the plaintiffs are in possession of the suit property and by installing pillers, the defendants tried to encroach upon the suit property. The first prayer is for injunction restraining the defendants from interfering the alleged possession of the plaintiffs over the suit property. The second prayer is that if the Court finds that the plaintiffs were not in possession, a decree for removal of encroachment to be passed. The suit was contested by the first defendant by filing written statement. After the 3 sa468­90 amendment of plaint, additional written statement was filed by the first defendant. The written statement of first defendant was adopted by the second defendant. 3. The trial Court dismissed the suit. An Appeal was preferred by the plaintiffs. The decree of the trial Court has been confirmed in Appeal. The finding recorded by the trial Court and by the Appellate Court is that the property mentioned in the plaint paragraph No.1C of the plaint is not properly described and hence, it cannot be identified. The Court below held that plaintiffs have not established their title in respect of the said property. 4. The learned counsel appearing for the appellants has taken the Court through the sale deed at Exhibit­42 dated 6th April, 1950 executed by the original owner Govind Vithu Kumbhar in favour of the respective fathers of the first and second plaintiffs. The learned counsel pointed out that the description of item No. 3 in the said sale deed substantially tallies with the description of the property in paragraph No.1C as shown in the sketch drawn by the Commissioner which is at Exhibit­40. The learned counsel pointed out that in case of first two properties in the sale deed, the measurements mentioned are in cubits and, therefore, though there is no reference to cubits in the other items, the 4 sa468­90 measurements are obviously set out in the cubits. The learned counsel also pointed out the sale deed at Exhibit­41 which is dated 10th January, 1955 executed by the said Govind Vithu Kumbhar in favour of the first and second defendants. The learned counsel submitted that as the property described in paragraph No.1C of the plaint was already purchased by the respective fathers of the first and second plaintiffs by sale deed dated 6th April, 1950, the said Kumbhar could not have sold the same property to the defendants. The learned counsel therefore submitted that the property shown on the Commissioner's map as property 1C is the third property purchased by the respective fathers of the first and second plaintiffs by sale deed dated 6th April, 1950 over which the defendants cannot claim any right as the claim of the defendants is based only on the subsequent sale deed dated 10th January, 1955 executed by the common vendor. The learned counsel submitted that the minor and inconsequential variations in mentioning breadth and length of the property cannot be defeat the case made out by the original plaintiffs as the property mentioned in paragraph No.1C of the plaint has been purchased by the sale deed dated 6th April, 1950. The learned counsel, therefore, submitted that the findings recorded by the Courts below are perverse. 5. I have carefully considered the submissions. I have 5 sa468­90 perused the record. I have perused the findings of the Courts below. Perusal of the plaint shows that the property described in paragraph No.1C is having dimension of 37 feet and 6 inches by 15 feet and 9 inches (22 x 9 cubits). Perusal of the description in paragraph No.1C shows that according to the plaintiffs, the width of the property is 15 feet x 9 inches and the length is 37 ½ feet. Perusal of the map drawn by the Commissioner shows that the width of the property described therein as the property 1C is 11 feet and the length is 39 feet. Thus, the length is in excess by one and half feet than the length mentioned in paragraph No.1C of the plaint. The width is short by 4 feet and 9 inches as compared to the width described in paragraph No.1C of the plaint. Even assuming that in the sale deed at Exhibit 42, the measurement mentioned is 22 x 9 cubits, the said measurement does not tally with the measurement of the property described in paragraph No.1C as shown in the report of the Court Commissioner. Perusal of the findings recorded by both the Courts below and in particular the Appellate Court shows that failure to make a reference to cubits in description of the third property mentioned in the sale deed is not the only ground held against the appellants. The Court has considered the measurements set out in the plaint, in the sale deed as well as in the report of the Commissioner at Exhibit­40. It must be noted 6 sa468­90 here that the only adverse finding recorded by the Appellate Court is as regards property set out in paragraph No.1C of the plaint. The finding is that the description of the property described in paragraph No.1C of the plaint does not tally with the description of the third property mentioned in the sale deed at Exhibit­42. This is purely a finding of fact which is based on appreciation of documentary evidence on record. The encroachment alleged is in property mentioned in paragraph No.1C of the plaint. Therefore, the Courts below declined to pass a decree for removal of encroachment as well as for injunction. Hence, no substantial question of law arises. The Second Appeal is accordingly dismissed with no order as to costs. (A.S.OKA, J.)