Bombay High Court
Kundlik Dnyanoba Tidke And Another vs Rama Tatyaba Tidke And Another on 7 December, 2023
Author: S.G. Mehare
Bench: S.G. Mehare
2023:BHC-AUG:25702
16-sa-744-2013.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 744 OF 2013
WITH CA/10844/2023
1. Kundlik s/o Dnyanoba Tidke
Age : 48 years, Occu : Agriculture,
R/o Bhogalwadi, Tq. Dharur,
District Beed.
2. Ashruba s/o Keshav Tidke
Age : 40 years, Occu : Agriculture,
R/o as above. ..Apellants
Versus
1. Rama s/o Tatyaba Tidke
Age : 53 years, Occu : Agriculture,
R/o. Bhogalwadi, Tq. Dharur,
District Beed.
2. Mahadeo s/o Anna Munde
Age : 58 years, Occu : Agriculture,
R/o as above. ..Respondents
...
Advocate for Appellants : Mr. M.B. Sandanshiv
Advocate for Respondent No.2 : Mr. V.P. Sawant
...
CORAM : S.G. MEHARE, J.
DATED : DECEMBER 07, 2023
ORDER :
-
1. Respondent no.1 was served but did not appear. Hence,
proceeded exparte.
2. Learned counsel for respondent no.2 states that
respondent no.2 is not responding him and never supplied him the
instructions. He also called the son of respondent no.2. He was
16-sa-744-2013.odt
intimated about the listing of the matter. He also sent a letter to
respondent no.2 but it has been returned as he was not available.
The said letter is placed on record and marked as Exhibit 'A'. It seems
that respondent no.2 has complete information and knowledge of the
matter listed today but he appears to have no interest. Hence, he is
proceeded exparte. The counsel holding for him may argue, if he
desires, in his absence.
3. Heard learned counsel for the appellants.
4. This Court by order dated 11.07.2017 issued notice to the
respondents for final disposal.
5. Learned counsel for the appellants would submit that the
property in dispute was not correctly identified. There was no
evidence that the plaintiff got the share in joint family property and
the property in dispute came to his share. The encroachment was not
exactly proved. Unless the encroachment area is identified, no decree
could have been passed. That identification of the property is a
substantial question of law to be determined in the case along with
the rights acquired by the plaintiff.
6. There are two concurrent judgments holding that
defendant no.3/present appellant has encroached upon 30 x 30 feet
area of the plaintiff. Both Courts have appreciated the facts and held
that the plaintiff was the owner of the suit land. The plaintiff has a
specific case that when he came from jail after suffering the sentence,
16-sa-744-2013.odt
he revealed that defendant no.3 has encroached upon his land which
he had acquired by partition.
7. Though the learned counsel for the appellants argues that
there was no evidence of partition, but the appellants did not deny
that the plaintiff has a share, right or interest in the suit land.
Therefore, there appears no substance in the arguments of the learned
counsel for the appellants. As far as the identification of the area
encroached upon is concerned, both parties have led the evidence.
Both Courts appreciating the evidence came to the conclusion that
defendant no.3/present appellant encroached upon the land
measuring 30 x 30 feet.
8. Perusal of the judgments impugned before the Court and
the defence of the defendants, this Court is not satisfied that
substantial questions of law have been involved in this case. He
raised a question of facts only. Hence, the appeal stands dismissed.
No order as to costs.
9. Civil Application No.10844 of 2023 stands disposed of.
(S.G. MEHARE, J.)
Mujaheed//
Signed by: Syed Mujaheed Naseer
Designation: PA To Honourable Judge
Date: 08/12/2023 19:02:56
