Nathu Nanadrao Burewar vs Deorao Girdhar Mamidwar & 4 Ors
2017 Latest Caselaw 2941 Bom

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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

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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.

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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.

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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/