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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.238 OF 2003
APPELLANT: Nathu S/o Anandrao Burewar, Aged 52
(Orig. Plff) years, Occu. Agril & Service, R/o Sunna,
Tahsil Kelapur, District Yavatmal.
(On R.A.)
-VERSUS-
RESPONDENTS: 1. Deorao Girdhar Mamidwar, Age 50 yrs.,
Occu. Agril.
2. Latabai Wd/o Ramesh Mamidwar, Age :
41 years., Occu. Agril.
3. Swapnil Ramesh Mamidwar, Age : 21
Yrs., Occu. Education,
4. Pinki d/o Ramesh Mamidwar, Age : 20
yrs., Occu. Education.
Above all r/o Sunna, at present R/o
Pandharkawada, Tahsil Kelapur, Distt.
Yavatmal.
5.
Indirabai w/o Kisanrao Rangnemwar,
Age : Major, R/o Mandwi, Tahsil -
Kinwat, District Nanded.
Shri Amol Mardikar, Advocate for the appellant.
None for the respondents.
CORAM: A.S. CHANDURKAR, J.
DATED: 08 th JUNE, 2017.
ORAL JUDGMENT :
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1. The appellant is the original plaintiff who had filed suit for possession after removal of encroachment. This suit came to be decreed by the trial Court. The appellate Court, however, allowed the appeal filed by the defendant no.1 thus giving rise to this second appeal.
2. It is the case of the appellant that he is the owner of agriculture field bearing Survey No.24/1 and Gut No.28/1 admeasuring 2 hectares 73R situated at mouza Sunna, Tah. Kelapur, District Yavatmal. On the southern side of his field, Survey No.24/2 and Gut No.28/2 admeasuring 1 Hectare 62R and Gut No.2 admeasuring 4 Hectare 35R owned by defendant No.1 are located. According to the appellant, the respondent No.1 had committed encroachment to the extent of 23R land and hence, the appellant got his land measured on 16-5-1995. Thereafter, the aforesaid suit came to be filed for seeking possession of the encroached portion.
3. The respondent Nos.1 & 2 filed their written statement at Exhibit-16. It was admitted that Gut No.28/1 admeasuring 2 Hectares 73R belonged to the appellant. It was further pleaded that said respondents were owners of Gut No.28/2 and Gut No.2 as averred by the appellant. In para 3 of the written statement, it was further admitted that on 16-5-1995 the measurement of the lands in question took place. It was, however, denied that the ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:19 ::: sa238.03.odt 3/7 respondents had committed any encroachment.
4. Before the trial Court, the appellant examined himself, the Assistant Taluqa Inspector of Land Records as well as the Taluqa Inspector of Land Records. Two maps at Exhibits 67 and 70 were placed on record. The respondent no.1 examined himself as well as the District Inspector of Land Records who placed on record another map at Exhibit-87.
5. The trial Court after considering the evidence on record held that the measurement carried out as per Exhibit-67 could be relied upon. After finding that the respondents were in possession of 0.21R land in excess of their entitlement and that 0.02R land was in possession of the National Highways Authority, it held that the appellant had proved the encroachment to the aforesaid extent. Hence, by judgment dated 18-8-1999 the suit came to be partly decreed to the extent of 0.21 HR land. The respondent No.1 challenged the aforesaid decree before the appellate Court. The appellate Court held that the appellant had not proved his sale-deed and, therefore, it could not be said that he had title to land admesuring 2 Hectares 73R. After discarding the map at Exhibit-67, the appeal came to be allowed.
6. While admitting the second appeal, the following substantial question of law was framed :
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(i) Whether the first appellate Court is
right in appreciating the scope of Section 83, which speaks about the presumption as to the maps or plans made by the authorities of Government, particularly when the measurement was done on the basis of village map. In that case, sale-deed was not necessary.?
7. Shri Amol Mardikar, learned Counsel for the appellant submitted that the title of the appellant was not in dispute inasmuch as in the written statement filed on behalf of respondent Nos.1 and 2 the ownership of the appellant with regard to Gut No.28/1 was not disputed. He submitted that in absence of any specific challenge to the title of the appellant, it was not necessary to specifically prove the said sale-deed. He submitted that in the measurement carried out on 16-5-1995 the respondents were present which fact was admitted in their written statement and, therefore, the trial Court rightly accepted the measurement at Exhibit-67. He submitted that the measurement at Exhibit-87 relied upon by the respondents was rightly not accepted by the trial Court. Referring to Section 83 of the Evidence Act, it was submitted that there was a statutory presumption as to the correctness of the maps prepared by the concerned authority. ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:19 :::
sa238.03.odt 5/7 According to him, the appellant Court was not justified in reversing the decree passed by the trial Court and dismissing the suit. He, therefore, submitted that the decree passed by the trial Court was liable to be restored.
8. On 7-6-2017 when the appeal was heard for some time, there was no appearance on behalf of the respondents. Today also there is no appearance on behalf of the respondents. With the assistance of the learned Counsel for the appellant, I have gone through the records of the case and I have given due consideration to his submission.
9. Perusal of the pleadings of the parties indicates that the title of the appellant with regard to Gut No.28/1 admeasuring 2 Hectares 73R is not specifically disputed. This is clear on reading para 1 of the written statement. In para 3 of the written statement, it has been admitted that notice for measurement of both the lands was given by the Taluqa Inspector of Land Records and such measurement took place on 16-5-1995. The respondent No.1 in his cross-examination has specifically admitted that he was present when both the fields were measured. The said Assistant Taluqa Inspector of Land Records has been examined vide Exhibit- 66 and he has placed on record measurement carried out by him at Exhibit-67.
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10. On consideration of the aforesaid evidence, the trial Court in paras 8, 10 and 11 has clearly recorded a finding that the measurement effected by PW-3 as per Exhibit-67 was after due notice to the parties and, therefore, was liable to be accepted. As per this measurement encroachment to the extent of 0.21R was found to have been made. It is on that basis that the trial Court decreed the suit.
11. The appellate Court, however, has reversed the decree passed by the trial Court only on the ground that the appellant failed to prove his sale-deed. As noted above, the title of the appellant was not in dispute and even the 7/12 Extracts at Exhibits 53 to 55 indicated the area of the respective lands. In the aforesaid backdrop, the appellate court was not justified in concluding that as the appellant had not proved his sale-deed, he was not entitled for any relief.
12. Once it is found that the ownership of the plaintiff was not specifically in dispute then there is no difficulty in upholding the finding recorded by the trial Court with regard to validity of Exhibit-67. The measurement therein was carried out after due notice to the parties and in their presence. The appellate Court without any justifiable reason discarded this measurement on the ground that the Tipan Utara of Survey No.24/2 was not available. ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:19 :::
sa238.03.odt 7/7 The measurement of both the lands having been carried out by the Taluqa Inspector of Land Records after due notice and the map so prepared having been duly proved by PW-3 who had carried out said measurement, the presumption under Section 83 of the Indian Evidence Act would come into operation. This presumption has not been rebutted by the respondents. Hence, the substantial question of law as framed is liable to be answered in favour of the appellant by holding that the measurement at Exhibit-67 was liable to be accepted in view of provisions of Section 83 of the Indian Evidence Act, 1872 and in absence of any other contrary material on record.
13. As a result of aforesaid discussion, the following order is passed:-
(1) The judgment and decree passed by the learned Additional District Judge, Kelapur in Regular Civil Appeal No.74 of 2002 dated 15-3-2003 is quashed and set aside. (2) The decree passed by the trial Court dated 18-8-1999 in Regular Civil Suit No.157/1995 stands restored. (3) The second appeal is allowed in aforesaid terms with no order as to costs.
JUDGE /MULEY/ ::: Uploaded on - 13/06/2017 ::: Downloaded on - 14/06/2017 00:25:19 :::