Bombay High Court
Bhagwan Sampatrao Lipne And Ors vs Panditrao Sukhdeo Lipne And Ors on 21 July, 2016
Bench: T.V. Nalawade
1 S.A. 488.2016 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 488 OF 2016
1. Bhagwan s/o Sampatrao Lipne
Age : 43 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
2. igBabasaheb s/o Bapurao Lipne
Age : 48 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
3. Madhukar s/o Kishanrao Lipne
Age : 48 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
4. Babasaheb s/o Vitthalrao Lipne
Age : 49 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
5. Abasaheb s/o Vitthalrao Lipne
Age : 43 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
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6. Uddhav s/o Balabhau Lipne
Age : 43 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
7. Tukaram s/o Ashroba Lipne
Age : 58 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
8.
igBalasaheb s/o Ashroba Lipne
Age : 48 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
9. Dhondiba s/o Malhari Lipne
Age : 83 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu, ... APPELLANTS/
Dist.: Parbhani. [ORI. DEFENDANT]
V E R S U S
1. Panditrao s/o Sukhdeo Lipne
Age : 59 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
Dist.: Parbhani.
2. Mahadeo s/o Panditrao Lipne
Age : 34 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu,
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Dist.: Parbhani.
3. Apparao s/o Kishan rao Lipne
Age : 61 Yrs., Occ. Agriculture,
R/o : Nirwadi (Kh.), Tq. Sailu, ..RESPONDENTS/
Dist.: Parbhani. [ORI. PLAINTIFFS]
.....
Mr. S.R.Choukidar, Advocate for Appellants.
igMr. V.D.Salunke, Advocate for R - 1 & 2.
.....
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 21/07/2016
JUDGMENT :
1. The Appeal is filed against the Judgment
and decree of R.C.S. No. 154/2008 which was pending in
the Court of the Civil Judge [Jr.Division], Sailu, district
Parbhani and also against the Judgment and decree of
R.C.A. No. 93/2013 which was pending in the Court of
the Ad-hoc District Judge -1, Parbhani. Heard both
sides.
2. The Suit was filed by the present respondents
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for mandatory injunction for removal of encroachment
made by the defendants on some portion of land G.No.
23 situated at village Nirwadi [Kh.], Tahsil Sailu, district
Parbhani. The area of this land is 3 H. 30 R. and it is the
case of the plaintiffs that by making some constructions,,
defendants have made encroachment from southern side
over the suit property. It is contended that in R.C.S. No.
152/1981, which was filed against defendant No. 10 and
others, relief of injunction was given in favour of
Dnyandeo Lipne and in the partition in the family of
Dnyandeo Lipne, the property came to plaintiff No. 1. It
is contended that the construction of temporary nature is
made by the defendants and for that the material like
fodder stacks and tin sheets are used. It is contended that
on 16/10/2007 on the request made by the plaintiffs,
revenue officer visited the spot and made panchanama of
unauthorized structures. It is contended that the names
of the defendants were then entered in the possession
column of some portion of 7/12 extract and so cause of
action took place. It is contended that there is collusion
between revenue authorities and the defendants.
3. Defendant Nos. 1,3,4 to 10 filed Written
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Statement and contested the matter. They only
contended that the Suit is not tenable as the description
as per the provision of Order VII Rule 3 of the Code of
Civil Procedure is not given. They admitted the previous
ownership of Dnyandeo over the suit property, but they
contended that there is dispute over the area which the
plaintiffs are claiming. They contended that their
possession is long standing, of more than 40 years and
they have become owners due to adverse possession.
4. On the basis of the aforesaid pleadings,
issues were framed. Both Courts below have held that
the plaintiffs are in possession over the remaining portion
of land G.No. 23 and the defendants have made
encroachment by making construction of temporary
nature over the property of the plaintiffs. The Courts
below have held that the defendants have failed to prove
that they have become owners due to adverse possession.
5. In support of the case and the oral evidence
of the plaintiffs, there is revenue record showing the title
of the plaintiffs over the land G.No. 23. The defendants
have no locus standi to challenge the ownership of the
6 S.A. 488.2016 - [J]
plaintiffs, as they are not claiming ownership in any other
manner than due to adverse possession. On the basis of
the revenue record, the Courts below have held that on
remaining portion, there is possession of plaintiffs.
Except the words of the defendants, there is no record
with them to show that they have been continuously in
possession of the suit property for more than 12 years
from prior to the date of the Suit. Their names were
entered as encroachers after the inspection made by the
revenue inspector in the year 2007. It can be said that
the entry of the names was also unwarranted in view of
the nature of possession and the purpose for which
temporary construction was made. It can be said that
their possession was at the most from 2005 or 2006. The
Suit was filed in the year 2008. In view of these
circumstances, it was not possible for the defendants to
prove that they have become owners due to adverse
possession.
6. So far as the point raised about description of
the property is concerned, it can be said that as the
defendants are not owners of adjacent property and by
making the construction of temporary nature on the
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property of the plaintiffs, they have made encroachment.
There was no question of measurement of the
encroachment. As the defendants have no right of any
kind to keep the possession, there was no other
alternative with the Courts below than to give the decree
of mandatory injunction to remove the encroachment of
temporary nature. No substantial question of law as
such is involved in the matter. The dispute about the
area of the portion owned by the plaintiffs, also need not
be considered in view of the nature of the dispute.
7. In the result, Second Appeal stands
dismissed. In view of dismissal of the Second Appeal,
C.A. No. 10226 of 2016 stands disposed of.
[T.V.NALAWADE, J.]
KNP/S.A. 488.2016 - [J]
