Bombay High Court
Babadsaheb Vishwanath Mohite And ... vs Prashant Anantrao Mohite And Ors on 4 July, 2016
Bench: T.V. Nalawade
1 S.A. 191.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
4 SECOND APPEAL NO. 191 OF 2016
WITH
CA/2878/2016
IN
SA/191/2016
BABADSAHEB VISHWANATH MOHITE
AND ORS.
VERSUS
ig PRASHANT ANANTRAO MOHITE
AND ORS.
.....
Mr. S.S.Choudhari, Advocate for Appellants.
Mr. A.M.Gaikwad, Advocate for R - 1 & 2.
.....
CORAM : T.V.NALAWADE, J.
DATE : 04/07/2016
ORDER :
1. The Appeal is filed to challenge the
Judgment and Decree of R.C.A. No. 123/2013 which was
pending in the Court of the Ad-hoc District Judge - 1,
Latur. The Appeal was filed by the plaintiffs of R.C.S.
No. 59 of 2011 which was pending in the Court of the
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Civil Judge [Jr.Division], Latur. The Suit was filed for
relief of declaration and for possession. The trial Court
had decreed the Suit partly. The first appellate Court has
given the decree of possession of encroached portion of
17 R. against defendant Nos. 3 to 5, which is additional
relief, and so this decision is challenged by the original
defendant Nos. 3 to 5. Paper book prepared by the
District Court for R.C.A. No. 123/2013 was shown to this
Court. Heard both sides.
2. In the Suit, relief of declaration was claimed
for setting aside the sale deed which was made before the
Notary. This relief was granted and this decision was not
challenged by the defendants by filing Appeal in the
District Court. Thus, only the decision given by the first
appellate Court for removal of encroachment and for
handing over the possession of 17 R. from G.No. 54
situated at Kasargaon, Tahsil and district Latur is under
challenge in the present matter.
3. It is the case of the plaintiffs that they are
the owners of land G.No. 54 admeasuring 2 H. 3 R. It is
their contention that the land was originally owned by
3 S.A. 191.2016
their grand-mother Mukrabai and due to the bad habits of
the father of the plaintiffs, the land was given by her to
the plaintiffs and she was acting as guardian of the
plaintiffs. It is contended that the defendants made
encroachment in or about the year 2002 from 2 sides of
the land. The defendants/present appellants are owners
of G.Nos. 55 and 56. Defendant No. 3 is the owner of
G.No. 55 and there is allegation that he made
encroachment to the extent of 2 R. Defendant Nos. 4 and
5 are owners of G.No. 56 and it is the contention of the
plaintiffs that they have made encroachment of 15 R.
4. The title of the plaintiffs over land G.No. 54
is not disputed and the area shown on the record viz. 2 H.
3 R. is also not disputed. To prove the encroachment,
plaintiffs have given evidence and they have examined
Cadestral Surveyor as their witness to prove the
encroachment. This Court has carefully gone through the
evidence given by the Cadestral Surveyor namely Sk.
Abdul. His evidence shows that he had given notices to
all the adjoining owners including the appellants and
then he had made measurements in the presence of the
owner and the adjoining owners. The Map prepared by
4 S.A. 191.2016
him is duly proved as Exh. 42 and he has shown the
encroachment made. The record is produced at Exh. 43
to show that the parties were present on the spot and the
record of the notices sent to the parties was also
produced. His evidence in the cross examination shows
that first he made joint measurement of lands of plaintiff
and defendants and then he made separate measurement.
Nothing could be brought on record from the side of the
defendants to create probability that the measurement
was not correctly made. This measurement was never
disputed by the defendants. In the Written Statement, it
is only denied that defendants have made encroachment
over the property of the plaintiffs. When there is record
consistent with the oral evidence given by the Cadestral
Surveyor, it was up to the Courts below to believe him or
not to believe him. The last Court on facts has believed
Cadestral Surveyor and as the record is consistent with
the oral evidence. Before the trial court, the evidence in
rebuttal was given only in respect of the property donated
and the property shown to be given under sale deed
which was notarized.
5. The learned counsel for the appellant
5 S.A. 191.2016
submitted that the first appellate Court had not framed
points for consideration on the basis of the issues framed
by the trial Court and vague points were considered and
so the decision of the first appellate Court can not sustain
in law. In support of his contention, he placed reliance
on 3 cases reported as 2006 (6) Mh.L.J. - 759
[Khatunbi Wd/o Mohammad Sayeed &
Ors. Vs.
Aminabai W/o Mohammad Sabir], 2003 (4) Mh.L.J. -
853 [Janardan Nago Patil Vs. Ramanand Ramdas
Mishra] and the case decided on 18/09/1984 by
Hon'ble Shri. Justice R.A.Jahagirdar [Anita M.Barreto
Vs. Abdul Wahid Sanaullah].
6. It is true that the first appellate Court is also
expected to formulate points for consideration and that
needs to be done on the basis of the issues framed by the
trial Court and then finding needs to be given on each
such point. The first appellate Court in the present
matter, considered the points like " whether the
Judgment and Decree of the trial Court is legal, valid or
interference is called in the said decision." Though the
points formulated were vague, the specific points in
dispute were considered in the First Appeal. The
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discussion about the encroachment starts from para No.
13 and the reasonings runs into more than 3 pages. The
relevant evidence given by the parties is considered and
the circumstance that no rebuttal evidence is given by the
defendants on the evidence given on encroachment is
also considered against the defendants. Nothing else
was expected from the first appellate Court after
formulating the point. As the relevant material is
considered and then the finding is given against the
appellants, this Court holds that no substantial question
of law as such is involved in the matter. Proof of
encroachment involves question of fact.
7. In the result, Second Appeal stands
dismissed. In view of dismissal of Second Appeal, C.A.
No. 2878 of 2016 stands disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 191.2016
