Abaji Yamaji Kotkar & Another vs Vithal Bala Choudhary & Another
2018 Latest Caselaw 1177 Bom

                                                                               sa70.94
                                        -1-


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          SECOND APPEAL NO. 70 OF 1994



 1.       Aba Yamaji Kotkar
          Age 58 years, Occ. Agriculture

 2.       Chhabu Yamaji Kotkar
          Age 72 years, Occ. Agriculture

          Both R/o. Kedgaon,                                ...Appellants
          Tq. and District Ahmednagar                       (Ori. Defendants)

                  Versus

 1.       Vithal Bala Chaudhari,
          Age 66 years, Occ. Agriculture

 2.       Kisan Bala Chaudhari,
          Age 71 years, Occ. Agriculture

          Both R/o. Kedgaon,                                ...Respondents
          Tq. and disrict Ahmednagar                        (Ori. Plaintiffs)


                                    .....
 Mr. A.B. Gatne, advocate for the appellants
 Mr. D.R. Jayabhar, advocate for respondents
                                        .....

                                              CORAM : V. K. JADHAV, J.

Date of Reserving the Judgment : 18.01.2018

Date of pronouncing the Judgment : 31.01.2018

JUDGMENT :-

1. Being aggrieved by the judgment and order dated 07.12.1993

sa70.94

passed by the learned 4th Additional District Judge, Ahmednagar in

Regular Civil Appeal No. 302 of 1986 thereby setting aside the

judgment and decree dated 30.04.1986 passed by learned 5 th Joint

Civil Judge, Junior Division, Ahmednagar in Regular Civil Suit No.

577 of 1982 and further decreed the said suit, the original defendants

have preferred this second appeal.

2. Brief facts giving rise to the present second appeal are as

follows:-

a) The respondents herein filed Regular Civil Suit No. 577 of

1982 contending therein that they are owners of agricultural land

bearing survey No. 97/1 admeasuring 3.76 Hectares situated at

Kedgaon, Tq. and district Ahmednagar. Towards southern side of

the said land, there is survey No. 93/1 owned and possessed by the

appellants-defendants. There is common Bandh between both these

lands in east west directions. It has been further pleaded that

appellants-defendants have started destructing the said Bandh

towards the land of the plaintiffs, thereby making encroachment upon

survey No. 97/1 and also obstructed the plaintiffs from enjoyment of

trees, standing in their lands. Accordingly, the respondents-plaintiffs

had applied to the D.I.L.R. for measurement of survey No. 97/1 and

for fixation of boundary marks. The said measurement was effected

sa70.94

by the Cadastral Surveyor and he found that the defendants have

made encroachment over 3 Are portion of land of survey No. 97/1.

The respondents-plaintiffs therefore, have filed the suit, as aforesaid,

for possession of 3 Ares portion of land and perpetual injunction

restraining the defendants from obstructing their enjoyment over the

trees.

b) The appellants-defendants have appeared in the suit and

resisted the claim of the plaintiffs by filing written statement at Exh.

13 and 15. The appellants did not deny the title however, denied the

allegations of destruction of common bandh and the encroachment

over the portion of 3 Ares land. They have also denied that there are

7 Nim and 1 tamarind trees within the suit property and contended

that the said trees are standing in their lands and they are the owners

of the said trees. The common bandh is in existence since their

forefathers and thus the contentions raised by the plaintiffs are

baseless. It was also contended by the appellants-defendants that

so-called measurement was effected behind their back and same is

not proper and legal. The appellants-defendants therefore, prayed for

dismissal of suit.

c) The learned Judge of the trial court on the basis of pleadings

and the evidence produced on record, has framed issues at Exh.24

sa70.94

and upon considering the arguments and evidence led by the parties,

dismissed the suit, by judgment and order dated 30.4.1986.

d) Being aggrieved and dissatisfied with the judgment and order

passed by the trial court, the respondents-plaintiffs had filed Regular

Civil Appeal No. 302 of 1986 in the District Court, Ahmednagar. The

learned 4th Additional District Judge, Ahmednagar, allowed the

appeal of the plaintiffs and directed the appellants herein to hand

over the possession of 3 Are land alleged to have been encroached

by the present appellants. Hence, this second appeal.

3. Learned counsel for the appellants submits that the lower

appellate court has not correctly appreciated the evidence led by the

parties and recoded the findings without any basis. The lower

appellate court has not taken into consideration the conduct of the

plaintiffs, who flatly denied to produce either agreement of sale, sale

deed or rent note on record to show the boundaries of the suit land.

Learned counsel submits that the suit is bad for non joinder of

necessary parties. The suit is also barred by limitation. The

appellants have not received the notices of D.I.L.R. in respect of

measurement of the suit land. The appellants-defendants and

respondents-plaintiffs are having vahivat up to the bandh and

therefore, the appellants have not made any encroachment. The

sa70.94

trees in question are owned and possessed by the appellants. The

appellants in the alternate prayed for adverse possession. Learned

counsel for the appellants submits that the lower appellate court

without considering all these material aspects of the matter has

allowed the appeal filed by the respondents-plaintiffs and decreed

the suit by setting aside the judgment and order of the trial court.

4. Learned counsel for the respondents-plaintiffs submits that the

learned Judge of the trial court did not properly consider the

evidence, facts and circumstances on record as well as the relevant

provisions of law. The learned Judge of the trial court has erred in

holding that the measurement was not properly done by the

Cadastral Surveyor and there is no encroachment made by

appellants to the extent of 3 Ares. Learned counsel for the

respondents submits that there is no error committed by the lower

appellate court in allowing the appeal. No interference is called for in

the second appeal and prayed for dismissal of second appeal.

5. It is the precise case of the plaintiffs that the defendants

encroached upon their land to the extent of 3 Ares and they came to

know about the same when their land was measured by the

surveyor. On careful perusal of evidence as well as the documents

and the judgment and orders passed by both the courts below, it

sa70.94

appears that the trial court has dismissed the suit on the ground that

the plaintiffs have admitted that there were no boundary marks on

the bandh in between the lands of the parties. Further the surveyor

has not issued any notice to defendant No.2 and as such, the suit

land is measured in absence of the defendants. The trial court has

also observed that at the time of measurement, there were no

boundary marks fixed in the land in question. The trial court has thus

concluded that the plaintiffs have failed to prove that the defendants

had encroached upon their land to the extent of 3 Ares. The trial

court has also observed that it is an admitted fact that the trees in

question are on common bandh and not in the absolute possession

of the plaintiffs.

6. On perusal of evidence of the plaintiff, it appears that the

plaintiffs though admitted that there were no stones on the bandh

showing the boundary between the lands, however, further stated in

his cross examination itself that old boundary marks were present

towards northern side of the lands and there were four boundary

marks on four corners. In this context, it is necessary to refer the

evidence of Cadastral surveyor, witness No.2 viz. Namdeo, for the

plaintiffs wherein he has categorically stated that the map has been

prepared as per the original scale and at the time of measurement of

the land, the map Exh.48 signed by the District Inspector of Land

sa70.94

Records is used for fixation of said land. The witness No.2 Namdeo,

the Cadastral Surveyor has deposed that there are 8 trees towards

southern side and the said trees are within the boundary line of

survey No. 97/1 and as per the map, there is encroachment of about

3 Ares in southern side of land Survey No. 97/1 made by owner of

survey No. 93. This encroached portion is shown in red colour in

document Exh.49. He has further stated in his cross examination that

the land was measured by plain table method. He has further

explained that if the plain table method is used, the surveyor has to

fix the boundaries by putting white colour stones on the boundaries,

which are existing in the said land and then distance between the

table on which the map is to be drawn and boundary is to be

measured is taken, and then the distance between the table and

boundary marks is to be measured. According to him, there are

about 12 boundary marks shown in the map. On the backdrop of the

independent evidence of Cadastral surveyor, the lower appellate

court has rightly observed that the Cadastral surveyor, who is an

expert on the point, has not given any sort of admission to the

defendants that it was not possible for him to effect the measurement

without shifting the table. The lower appellate court has turned down

the submissions made on behalf of defendants that since the land of

the defendants were not measured, the alleged encroachment

cannot be determined. The Cadastral surveyor, P.W.2 Namdeo, has

sa70.94

measured the suit land on the strength of fixed points which were

available in the land. The lower appellate court therefore, has rightly

held that it is not necessary to measure the adjoining land and the

said fixed points are also shown in the map by letters "O" and "F".

7. The defendants are brothers interse and defendant No.1 has

examined himself on oath before the Court. The plaintiffs have

deposed that the defendants were present at the time of

measurement. The same has not been specifically denied. Though

P.W.2 Namdeo, Cadastral Surveyor, has admitted that no notice is

served on defendant No.2, however, defendant No.1 has not stated

specifically in his deposition that he was not present at the time of

measurement. The defendant No.2 has not entered into witness box.

On the other hand, the defendant No.1 has deposed in the court on

behalf of defendant No.2 also. I do not find any substance in the

submissions that the plaintiffs did not produce the sale deed or

agreement of sale of the said property so as to show the sale of land

survey No. 97/1. The defendants have not denied the title of the

plaintiffs over the suit land and there is no propriety to produce the

sale deed or agreement of sale before the courts below. The 7x12

extract of the suit property as well as the 7x12 extract of the land of

the defendants though produced on record, however, the same do

not reflect the entries in respect of trees. Consequently, the lower

sa70.94

appellate court has rightly given weightage to the document Exh.60

wherein the concerned Tahsildar has given permission to the

plaintiffs to cut the trees. Further, P.W.2 Namdeo, Cadastral

Surveyor has specifically deposed before the court that the said tress

are within the limits of suit land survey No. 97/1 and not in the land of

defendants nor on the common bandh. The question as to who has

planted those trees is immaterial since the plaintiffs had acquired the

said land by purchasing the same under the provisions of Bombay

Tenancy and Agricultural Lands Act.

8. In view of the above discussion, I do not find any substantial

question of law involved in this second appeal. The learned Judge of

the trial court has recorded the finding contrary to the evidence on

record. The lower appellate court has rightly interfered in the same.

There is no substance in the appeal. The second appeal is hereby

dismissed. In the circumstances, there shall be no order as to costs.

( V. K. JADHAV, J.)

rlj/