Coming to the next point that, when it is admitted position that defendant was in adverse possession of the suit property, whether Courts below were correct in not formulating the point for consideration. In my considered view, when it is admitted position that the defendant is in possession of the suit property from 1951, both the Courts below should have formulated the point for determination in respect of pleas of the Appellant for adverse possession of the suit property.
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Bombay High Court
Harsing Kewala Rathod vs Ramji S/O Hemla on 15 December, 2008
Bench: S. S. Shinde
Citation; 2009 (2) ALL M R 169 Bombay
1. The present Second Appeal impugns the final Judgment and Order passed by the 5th Additional District Judge, Nanded in Regular Civil Appeal No.35 of 1985 confirming the final Judgment and Decree passed by the Civil Judge, Junior Division, Kinwat in Regular Civil Appeal No.3 of 1983. 2
2. The brief facts of the case are as under: . It is the contention of the plaintiff that he is the owner and possessor of the suit Survey No.75 situated at village Patoda, Taluka-Kinwat, District-Nanded on the basis of registered sale deed dated 6th March 1972. The land of defendant bearing Survey No.74 is lying adjacent to the land of plaintiff from Northern side and there was common Dhura in between two lands. It is further contended by the plaintiff that in the year 1981 the defendant destroyed the common Dhura and encroached the suit portion of 5 R from Northern side of land Survey No.75 belonging to Plaintiff and after this suit portion, he constructed one loose stone wall. The plaintiff requested the defendant on so many times for removing the loose stone wall and vacating the portion of 5 R encroached which is part and parcel of the suit Survey No.75. But defendant did not give any heed to the request of the plaintiff. On the contrary defendant asked the plaintiff to get measured his land from M.C. Inspector. Accordingly plaintiff got measured his land i.e. suit Survey No.75 from 3
Surveyor D.I.L.R. Officer, Nanded on 26th June, 1982 and in said measurement also it is found that defendant has made encroachment over suit survey Number from Northern side to the extent of 5 R and this portion is shown in the map by surveyor drawn there. Lastly on 10th October, 1982 plaintiff asked the defendant before Panchas to vacate the suit portion of 5 R encroached by him out of suit Survey Number, but defendant refused and raised quarrel with plaintiff. Therefore, plaintiff constrained to file the Suit.
. In pursuance of suit summons defendant appeared and resisted the claim of the plaintiff by filing his written statement at Exhibit 16. He has denied the ownership and possession of the plaintiff over the suit survey number. However, he has admitted that land survey No.74 is owned and possessed by him and same is lying on Northern side of Survey No.75. According to defendant, he has purchased land Survey No.74 before police action and after purchase he has laid the loose stone wall all alongwith the Southern Boundary of land Survey No.74 immediately with a view to improve his land Survey No.74. Hence, he has 4
denied all the contents of the plaintiff in the plaint. According to defendant, he has not made any encroachment over the suit Survey No.75 at any time nor plaintiff asked him at any time to remove the loose stone wall and vacate the portion of 5 R nor plaintiff has got measured the land on 26/6/1982 from Surveyor of D.I.L.R. Office, Nanded. It is further contended by the defendant that the suit of the plaintiff is barred by law of limitation and prayed to dismiss the suit of plaintiff.
3. On the basis of the pleadings of the parties, the trial Court framed as many as five issues and after considering entire evidence on record and after hearing the respective counsel for the parties, decreed the Suit by the respondent herein/plaintiff and the present Appellant/ original defendant was directed to handover possession of the encroached portion of 5 R. on Northern Side of land Survey No.75 situated at village Patoda, Taluka-Kinwat.
4. Being aggrieved by the final Judgment and Decree dated 31/12/1984 passed by the Civil Judge, 5
Junior Division, Kinwat in Regular Civil Suit No.3 of 1983, the present Appellant filed Regular Civil Appeal No.35 of 1985. The lower appellate Court confirmed the findings recorded by the trial Court, hence this Second Appeal.
5. When this Second Appeal was admitted by this Court, following substantial questions of law were formulated:-
(i) When it is a specific case of plaintiff that in 1951 defendant made encroachment on the suit land by constructing a loose stone wall, therefore,
it is clear that the defendant's possession
on the suit land is more than 12 years. Under such circumstances, whether the plaintiff's suit is within limitation and whether such suit can be decreed which is hopelessly barred by limitation?
(ii) When there is specific pleading on the point of adverse possession, without framing issue/point of determination whether the decree passed by the lower 6
court is sustainable?
(iii) When the original record of alleged measurement and map was available, and it was not produced in the Court; therefore, when prima facie evidence was available, whether secondary evidence can be admissible?
(iv) Without measuring both the Survey Numbers whether inference can be drawn on the basis of measurement of only plaintiff's land that the defendant has made encroachment?
6. Learned counsel for the Appellant submitted that both the Courts below have recorded incorrect findings that the suit filed by the plaintiff was within limitation. It is further submitted that the measurement of only plaintiff's land was carried out by Surveyor and land of the Appellant/defendant was not measured. The defendant was not present when the measurement was carried out and therefore the findings recorded by the trial Court on the basis of the said 7
measurement that the present Appellant has encroached 5 R. land of the plaintiff, are not sustainable. For proving the case of encroachment, it was necessary for the Surveyor to carry out the measurement of Survey No.74 and Survey No.75, however, the Surveyor has carried out measurement of only Survey No.75.
. It is further submitted that suit has been filed in the year 1983. The Appellant is in possession of the suit property from 1950. The present Respondent/original plaintiff purchased the property from the original land owner in 1972. It is admitted by the plaintiff in his cross examination that the present Appellant is in possession of the suit property from 1950. It is further submitted that once it is admitted by the plaintiff that, the Appellant is in possession of the suit property from 1950, the suit filed by the plaintiff in the year 1983 was clearly beyond the period of limitation. The learned counsel further submitted that, since 1950 the Appellant is in possession of the suit property and therefore both the Courts should have framed necessary issue in respect of adverse possession of the present 8
Appellant, however, no issue has been framed in that respect. it is further submitted that the D.I.L.R. who measured the land, submitted only copies of the original record and original record was not produced before the Court. It is further submitted that, the findings recorded by the Courts below are perverse. The suit filed by the plaintiff was hopelessly time barred and therefore the Second Appeal deserves to be allowed. It is further stated that, at the time of admission of the Second Appeal, this Court has formulated the substantial questions of law after hearing the learned counsel for the Appellant and after perusal of the Judgements and Orders passed by the Courts below and therefore the Second Appeal deserves to be allowed.
7. The learned counsel appearing for the Respondent/plaintiff relied on the findings recorded by the Courts below and submitted that both the Courts below concurrently held that, there is encroachment on 5 R. land by the present Appellant/defendant. It is further submitted that the measurement carried out by thew D.I.L.R. was proper. It is further submitted that though 9
notice was given to the present Appellant to remain present for the measurement, he did not remain present for the measurement. The sum and substance of his argument was that, there are concurrent findings recorded by the Courts below therefore, there is no substance in the Second Appeal and the same deserves to be dismissed.
8. Heard the learned counsel for the Appellant and Respondent at length. Perused the Judgments and Orders passed by the Courts below and original record of the case.
9. I propose to answer the questions formulated by this Court one by one. Coming to the first question which was formulated by this Court that, when it is a specific case of the plaintiff that in 1951 defendant made encroachment on the suit land by constructing loose stone wall, that itself proves that possession of the Appellant/defendant over the suit land is more than 12 years, under such circumstances whether the suit filed by the plaintiff was within limitation.
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. I have perused the cross examination of the plaintiff. The cross examination of the plaintiff does indicate that, the defendant is in possession of the suit land from 1951. Further the lower appellate Court in para 2 while narrating the facts, has narrated the fact that:-
'It was alleged by the plaintiff in
the trial court that, in 1951, defendant destroyed the common Dhura and encroached upon 5 R land
from plaintiff's land Survey No.75.
Thereafter he constructed one loose
stone wall dividing two fields.'
. Once it is admitted position that the defendant are in possession of the suit property from 1951, in my considered view, both the Courts below are not correct in holding that the suit filed by the plaintiff was within limitation. When it is admitted position that the defendant/Appellant herein is in possession of the suit property from 1951, the suit filed by the plaintiff was time barred and therefore the suit should have been dismissed on the ground of 11
limitation.
10. Coming to the next point that, when it is admitted position that defendant was in adverse possession of the suit property, whether Courts below were correct in not formulating the point for consideration. In my considered view, when it is admitted position that the defendant is in possession of the suit property from 1951, both the Courts below should have formulated the point for determination in respect of pleas of the Appellant for adverse possession of the suit property.
11. Coming to the third point, inspite of having the original record of measurement available with the D.I.L.R., filing of only copies of the said record before the Court and Court coming to the conclusion that the defendant has encroached over the land of the plaintiff to the extent of 5 R., was prima facie incorrect approach. In fact the original record of measurement and map should have been insisted by the trial Court.
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12. The fourth point i.e. without measuring both the Survey Numbers whether inference can be drawn on the basis of the measurement of only plaintiff's land that the defendant has made encroachment, in my considered view, the Surveyor/ D.I.L.R. should have measured both the Survey Numbers i.e. Survey No. 74 and Survey No. 75. Unless both the Survey Numbers are measured, it is not possible to come to the conclusion that there is encroachment by defendant over the plaintiff's land. The D.I.L.R. should have measured Survey No. 74 and 75 and after measurement of both Survey Numbers, should have submitted report to the Court and on the basis of measurement of both the Survey Numbers belonging to plaintiff and defendant, the Court should have adjudicated the point in issue.
13. In my considered view, viewed from any angle, the present Second Appeal deserves to be allowed. Second Appeal is allowed. The Judgment and Decree passed by the Civil Judge, Junior Division, Kinwat dated 31/12/1984 in Regular Civil Suit No. 3 of 1983 and Judgment and Order passed by the 5th Additional District Judge, Nanded in 13
Regular Civil Appeal No.35 of 1985 is hereby set aside.
[S.S. SHINDE]
JUDGE.
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