Bombay High Court
Shaikh Abdul Rahim Shaikh Budhan vs Shaikh Bapuji Shaikh Ahmed Died Lrs. ... on 25 April, 2025
2025:BHC-AUG:12047
1 SA 409.99.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 409 OF 1999
1. Shaikh Bapuji s/o Shaikh Ahmed,
Died through his L.Rs.
2. Shaikh Sikander s/o Shaikh Bapuji,
age 53 years, Occ. Agri, R/o
Aher Wahegaon, Tq. Georai,
District Beed.
3. Shaikh Usman s/o Shaikh Bapuji,
age 50 yrs, Occ. And R/o as above,
4. Shaikh Subhan s/o Shaikh Bapuji,
age 45 years, Occ. And R/o as above.
5. Shaikh Alijahan s/o Shaikh Bapuji,
age 42 years, Occ. And R/o as above.
6. Shaikh Rubab s/o Shaikh Bapuji,
age 40 years, Occ. And R/o as above. .Appellants
(orig. Defendants)
VERSUS
1. Malanbi Sk. Budhan (died)
Through L.Rs.
2. Shaikh Abdul Rahim s/o Shaikh Budhan,
age 45 years, Occ. Agriculture,
R/o Aherwahegaon, Tq. Georai,
District Beed.
Through General Power of Attorney,
Shaikh Karbhari Shaikh Noor,
age 65 years, Occ. And
R/o as above ..Respondents..
(orig. plaintiffs)
.....
Advocate for Appellant : Mr. Rajendra Deshmukh Senior
Advocate a/w Mr. Shriram Deshmukh i/b Mr. D.r. Deshmukh
Advocate for Respondent 2 : Mr. K. N. Shermale
2 SA 409.99.odt
.....
WITH
CIVIL APPLICATION NO. 12063 OF 2022 IN SA/409/1999
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on : April 08, 2025
Pronounced on : April 25,2025.
JUDGMENT :
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1. The appellants/original defendants impugns the
judgment and decree dated 23.3.1999 passed by the District
Judge, Beed in Regular Civil Appeal No.209 of 1992 thereby
upholding judgment and decree dated 28.7.1992 passed by the
Civil Judge J.D., Georai in Regular Civil Suit No.3 of 1979.
2. Respondents/plaintiffs instituted Regular Civil Suit
No.3 of 1979 seeking decree for possession of encroached
portion of agricultural land gat no.549 to the extent of 2 acres
from the western portion more particularly shown in the map
of plaint paragraph no.1. According to plaintiffs, suit land gat
no.549 is their ancestral property and they are the owners.
Defendant no.1 is father of defendant nos.2 to 6. They are
owners of land gat no.539 which is adjacent to gat no.549.
Previously, plaintiffs had filed RCS No.104 of 1971 seeking
decree of perpetual injunction against defendant and it was
decreed, however, defendant no.1 continued obstruction.
3 SA 409.99.odt
Thereafter, Regular Darkhast no.69 of 1976 was filed to
execute the decree of perpetual injunction, however, the same
was dismissed in default. Taking dis-advantage of the
aforesaid fact, defendant encroached upon 2 acres of suit land
from gat no.549 and on 15.10.1978 refused to hand over
possession of encroached portion to plaintiff. The defendants
filed written statement and refuted claim of the plaintiffs.
They admitted title of the plaintiffs, however, denied
encroachment.
3. Trial Court framed the issues. District Inspector of
Land Records , Beed was appointed as the Court Commissioner,
who submitted report with measurement map at exhibit 30,
panchnama exhibit 37 and map at exh.38. He has been
examined as plaintiffs witness no.1. The trial Court, after
evaluation of the evidence, decreed the suit and directed
delivery of possession of the suit land in favour of plaintiffs as
per map Exhibit 38. The defendants assailed aforesaid decree
before the appellate authority in R.C.A. no.209 of 1992. Appeal
came to be partly allowed to the extent of modification of area
of possession to the extent of 72R as against 87 R mentioned in
the Trial Courts decree.
4 SA 409.99.odt
4. By order dated 7.3.2001 second appeal was
admitted on ground nos.3, 4, and 6 as mentioned in the appeal
memo being substantial questions of law, which reads thus :-
i. Both the Courts below have erred in giving much
importance to the alleged measurement carried out
by the DILR which in fact is not in accordance with
the procedure laid down for such measurement.
Moreover, the DILR has measured only the land of
the plaintiffs which if so fact does not mean that the
defendants have encroached upon the land of the
plaintiffs as the land of the plaintiffs is also
surrounded by the other land owners having their
lands adjacent to the lands of the plaintiffs from the
sides other than that of the defendants. In such
situation, it was incumbent upon the DILR to
measure all the adjacent land also so as to figure
out the encroachment correctly and properly. From
the available record it cannot be said that even if
the land of the plaintiff is found to be less than that
of recorded area, it is the defendants, who have
encroached the land of the plaintiffs on the contrary
the possibility that other adjoining the land owners
have encroached upon the land of the plaintiff
cannot be ruled out.
ii. Both the Courts below have erred in relying upon
the report of the Court Commissioner which speaks
about the ages of the trees standing on the middle
Bundh in between the lands of the plaintiffs and
defendants. In fact the Court Commissioner who is
an advocate is not an expert to decide the age. The
report itself makes it clear that the Court
Commissioner was not only bius but he has
exceeded his limits in commenting upon the ages of
the trees. It is pertinent to note that the Court
Commissioner Shri Jain at the time of his
5 SA 409.99.odt
appointment of Court commissioner was attached
with the office of Advocate Shri S.U. Mote as Junior,
who was representing plaintiff in the suit, therefore,
it can be easily said that the report is bius and is so
prepared to suit the purposes of plaintiffs.
iii. It is also not proper to accept the evidence of DILR
Shri Pawar for the reasons he was unable to tell the
exact situation of the lands, so also he was not
aware of the fact whether the partition bunds were
there or not, much less he was also not aware about
the procedure of measurement for affixing the
encroachment as he measured only the lands of the
plaintiffs on the contrary he should have mention
entire survey no.115 of which the lands of plaintiffs,
defendants and other co-owners have been given
separate gut numbers. Not only this, but the
procedure adopted by the DILR Shri Pawar for
concluding the encroachment is also very novel and
with no stretch of imagination, it can be said that
the defendants have encroached upon the lands of
the plaintiffs when the fact remain that the lands of
the plaintiffs is surrounded by the lands of other
owners from the three different directions."
5. Learned senior advocate Mr. Deshmukh appearing
for the appellants vehemently submitted that report of DILR
could not have been relied upon to pass a decree. According to
him, defendants were neither noticed of measurement dated
2.12.1981 nor were they present on spot. By inviting attention
of this Court to oral evidence, he submitted that there is
specific admission in cross-examination of PW1/cadastral
6 SA 409.99.odt
surveyor that he does not remember if notice of measurement
was given to defendant or not. Although, lateron he claims
that he had issued notice under-posting certificate, no evidence
to that effect is tendered into service. By referring to the
panchnama, he submits that there is no signature of the
defendant. Learned senior advocate therefore submitted that,
judgment and decree under appeal is based on misreading of
evidence.
6. Per contra, Mr. Shermale, learned advocate
appearing for respondent no.2 submits that DILR was
appointed as Court Commissioner. Parties were served with
notices. Defendants were present at the time of measurement.
The report of measurement alongwith panchnama was
submitted to the Court. At no point of time objection to
measurement and report was raised by the defendants and
now false defence is being taken.
7. Having considered the submissions advanced,
thrust of defendants contention is alleged non-service of notice
of measurement by PW 1 Mr. Pawar/DILR. It is true that,
although, PW-1 claims to have served notices through UPC, he
could not place on record any evidence to that effect.
7 SA 409.99.odt
However, panchnama Exhibit-37 clearly stipulates that
plaintiffs and defendants alongwith witnesses were present at
the time of measurement. As rightly contented by Mr.
Shermale, learned advocate appearing for
respondents/plaintiffs, measurement report of the
expert/Court Commissioner, who is also DILR never assailed
before the Nimtandar/Appellate Authority. First time, such a
defence is raised at the time of cross-examination of the
witness. DILR prepared map on the basis of original boundary
marks maintained by land records. The map at Exhibit 38
prepared by DILR shows encroachment of 72R. Apart-from the
aforesaid evidence, both the Courts have relied upon another
report of Court Commissioner, i.e. Mr. R.D. Jain, who
submitted report as regards to existence of Trees on bandh
between lands of plaintiffs and defendants. This report was
never disputed by the defendants. Appellate Court observed
that, in light of oral and documentary evidence, plaintiffs have
proved encroachment of 72 R land from western portion of gat
no.549 at the hands of defendants and confirmed findings
recorded by the Trial Court with modification as to the area.
8 SA 409.99.odt
8. So far as ground no.3 is concerned, such an issue
is raised first time in this appeal. Map at Exhibit 38 clearly
shows that DILR has measured gat nos.539 and 549 as per
fixed points and then determined area of encroachment.
Therefore, there is no substance in the contention of appellants
that both the lands were not measured. Both the Courts have
recorded concurrent findings as to the encroachment of
defendants on land of the plaintiffs. The finding is based on
appreciation of evidence.
9. In that view of the matter, there is no substance in
this second appeal. Second Appeal stands dismissed. Pending
civil application, if any, also stands disposed of.
( S. G. CHAPALGAONKAR, J. )
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