Bombay High Court
Ramchandra Pandurang Lawand And Ors vs Sambhaji Tukaram Jadhav on 28 November, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:35236
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.165 OF 2022
Ramchandra Pandurang Lawand & Ors. ... Appellants
V/s.
Sambhaji Tukaram Jadhav ... Respondent
WITH
INTERIM APPLICATION NO.1216 OF 2022
IN
SECOND APPEAL NO.165 OF 2022
Ramchandra Pandurang Lawand & Ors. ... Applicants
V/s.
Sambhaji Tukaram Jadhav ... Respondent
Mr. Dilip Bodake for the appellants/applicants.
Mr. Ajay A. Joshi with Mr. Vikas Kolekar for the
respondent.
CORAM : AMIT BORKAR, J.
DATED : NOVEMBER 28, 2023
P.C.:
1. The appellants are original defendants against whom
respondent plaintiff filed Special Civil Suit No.270 of 2002 for
possession of encroached area to the extent of 5R land from Gat
No.486 admeasuring 75R.
2. According to the plaintiff, two years prior to filing of the suit
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he measured his land through surveyor and he found that
defendants encroached over suit land to the extent of 5R. Despite
plaintiff's request, the defendants continued with possession of
encroached portion and, therefore, plaintiff filed suit for
possession of encroached portion described in the plaint.
3. The appellants resisted the suit by filing written statement
and contended that the portion described in the suit is in
possession of the defendants from the date of sale deed and they
constructed pipeline and cattle shed over it. The measurement
carried out by the defendants through surveyor indicates existence
of bandh between plaintiff's and defendants' land. The defendants
are in possession of disputed portion of land for more than fifty
years.
4. The Trial Court framed necessary issues casting burden on
the plaintiff to prove encroachment. In order to prove the case, the
plaintiff filed an application for appointment of Court
Commissioner and accordingly the Court appointed Taluka
Inspector of Land Records for measurement of land. He submitted
a report indicating that there is encroachment to the extent of 5R
land. The map of suit land produced on record by the surveyor
indicates encroachment by the defendants. Moreover, the plaintiff
examined the surveyor who supported the findings in the report.
5. The Trial Court based on the report and map prepared by
Taluka Inspector of Land Records along with oral evidence
recorded a finding of fact that the defendants have encroached
over the suit land to the extent of 5R. The Appellate Court
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confirmed the said finding of fact.
6. Learned advocate for the appellants submitted that the
surveyor in his oral evidence admitted that the stones indicating
boundary marks of the plaintiff's land were not found by the
surveyor and, therefore, the measurement based in ignorance of
such crucial factor is defective and cannot be relied upon to record
finding of encroachment. According to the learned advocate for
the appellants, issuance of notice to all co-sharers is mandatory
and since the surveyor failed to issue notice on the official address
of defendant No.2, the report of surveyor cannot be accepted.
According to him, in absence of relief of mandatory injunction to
remove pipeline and cattle shed, suit for possession of vacant land
is not maintainable.
7. I have perused the pleadings, oral evidence, measurement
report and map submitted by the surveyor. On scrutiny of
judgments of the Courts below, it appears that both the Courts
below have recorded a finding of fact based on evidence on record.
This is not a case where finding of fact is based on no evidence or
in ignorance of material evidence or a finding based on
inadmissible evidence which if ignored would led to opposite
conclusion.
8. In so far as the contention raised on behalf of the appellants
that the surveyor admitted in his cross-examination that he did not
find boundary-mark stones at the site is concerned, it is not open
for this Court exercising power under section 100 of the Civil
Procedure Code, 1908 to re-assess the evidence particularly when
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the finding of fact of encroachment is based on measurement
carried out by the expert in the field. No circumstances brought on
record by the defendants to indicate that the mandatory procedure
as required under the provisions of the Maharashtra Land Revenue
Code, 1966 has not been followed. The admission as alleged by
the appellants is not clear or unequivocal. There is no dispute
about the fact that defendant No.1 and defendant No.3 were
present when the surveyor carried out the measurement.
Defendant Nos.1 to 3 have filed common written statement. Two
co-owners out of three were present at the time of survey.
Therefore, no prejudice is caused to the defendant No.2 as
defendant No.2 is not the owner of distinct portion of the suit
land.
9. In so far as the contention raised by the appellants that the
suit for possession is not maintainable in absence of relief of
mandatory injunction is concerned, in my opinion, the substantive
relief of possession is prayed by the plaintiff. The relief of
injunction either mandatory or prohibitory is a discretionary relief
and in a suit for removal of encroachment, proper relief is to seek
possession of property by way of substantive relief. Therefore, in a
suit seeking vacant possession of the suit property, it is not
necessary to claim relief of mandatory injunction for removal of
movable properties.
10. In so far as the submission that the plaintiff and the
defendants have settled their dispute before the criminal Court and
have agreed to withdraw the complaint is concerned, in my
opinion, the document of compromise was not produced before
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the Appellate Court by following the procedure under Order 41
Rule 27 of the Civil Procedure Code, 1908. Therefore, the
Appellate Court was not bound to consider such documents
without the procedure under Order 41 Rule 27 of the Civil
Procedure Code being followed by the defendants.
11. On overall consideration of the judgments passed by the
Courts below, it is apparent that the Courts below have recorded a
concurrent finding of fact based on material on record in the form
of oral evidence, measurement report and the map. The finding of
fact recorded by the Courts below cannot be termed as perverse.
Hence, no substantial question of law arises for consideration.
12. The second appeal is, therefore, dismissed. No costs.
13. In view of dismissal of the second appeal, the interim
application does not survive and the same stands disposed of.
14. Considering the fact that there is ad-interim relief running in
favour of the appellants, the same is continued for period of four
weeks from today.
(AMIT BORKAR, J.)
