1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 254/2011 Nandlal s/o Sitalprasad Jaiswal, Age : 59 years, Occu. Business, R/o Kannad, District : Aurangabad. ...Appellant. Versus Kmalnarayan s/o Jagannath Jaiswal and others ...Respondents. Mr. N.K. Kakde, Advocate for the appellant. Mr. S.S. Wagh, Advocate for respondent No.11. CORAM : A.V. NIRGUDE, J. DATED : 14th Sept., 2011. PER COURT: 2. The appeal is filed against the concurrent findings of the Courts below that the respondents/plaintiffs are entitled to partition of suit property which admeasures 2025 sq ft. The suit property is a plot of land and a house on it. It is situated in Kannad town. It is admittedly a residential house of the parties. The parties are members of one family. It is common ground that the ancestor of the parties purchased two plots of lands with structure on it in 1950 and 1960 and joined them to make the suit property. The area which they purchased through registered sale deeds comes to 1284 sq ft. This plot included the built up structure. The sale deeds thus show that the suit property can not be more than 1284 sq. feet. But when the respondents / plaintiffs filed this suit, they mentioned in it that the suit property admeasures 2025 sq. feet. Despite the fact that the sale deeds and 2 the contents of the same are not in dispute, the Courts below too held that the suit property is 2025 sq. feet. While defending the suit, present appellant contended that the respondents/plaintiffs have not described the area of the suit property correctly. He neither explained as to how the suit property can not have area of 2025 sq. feet. But during the trial, he admitted in cross examination that the present area in possession of the parties is 2025 sq. feet. He thereby admitted the case of the respondents/plaintiffs that the suit property has area of 2025 sq. feet. The Courts below in view of the admission, found it easy to decree the suit. 2. While arguing the second appeal for admission, learned counsel appearing for the appellant brought to my notice a document which was not filed before lower Courts. This document is a copy of complaint filed by the Municipal Council of Kannad town against the present appellant and his late mother Dropadabai. The allegation made in the complaint was that the appellant and his mother had made encroachment on Municipal land in front of their house (the suit property). The learned counsel thereby tried to explain that his client and his mother by encroaching on the Municipal area, increased the size of the suit property. The learned counsel, in view of this, questioned the possibility of the respondents/plaintiffs’ proving the title to the suit property. As said above, it is amply clear that the plaintiffs/respondents could prove title only to the area of 1284 sq. feet and have not given any explanation as to how the additional area has come in the possession of this family. By showing me the document, the appellant/defendant is now trying to explain that the encroached area if included to the original plot of lands purchased by the family 3 members of the parties, it would make 2025 sq feet area. However, this theory of encroachment can not be taken into account while examining correctness of the judgments passed by the Courts below. This theory of encroachment was never part of the defence. It appears that the appellant is trying to make a feeble attempt to suggest that the encroached area in front of the original house property of the family belongs to him because it was he who was accused of encroaching it. I am afraid, this is also quite outside the scope of this litigation. What has come before the Courts below was an admitted position that though the family owned area admeasuring 1284 sq feet, when the suit was filed, they had in their possession an area of 2025 sq. feet. This plot admittedly is in possession of the joint family and therefore, the Courts below held that this was the suit property. In view of this, there is no reason why the respondents/plaintiffs should be asked to prove the title. In other words, long standing possession of the plot of land gave sufficient title to the family members jointly. This property thus can safely be shared between the members of the family. The appeal should therefore, fail. ORDER The appeal is dismissed. Civil Application No.6939/2011 is disposed of. [A.V. NIRGUDE,J.] ts k/2011/Sept14/sa254.11ok