Bombay High Court
Taibai Bandu Kale vs Sheshraj Suryabhan Kalane on 4 August, 2025
2025:BHC-AUG:20744
61-SA-357-2024.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 357 OF 2024 WITH
CIVIL APPLICATION NO. 3285 OF 2024
IN SA/357/2024
Taibai Bandu Kale
VERSUS
Sheshraj Suryabhan Kalane
***
• Mr. S. N. Gaikwad h/f Mr. S. P. Salgar, Advocate for
the Appellant
• Mr. M. R. Sonawane, Advocate for the Respondent
***
CORAM : R. M. JOSHI, J
DATE : AUGUST 04, 2025
PER COURT :
1. By consent of both sides, heard finally at the
stage of admission.
2. This Appeal under Section 100 of Code of Civil
Procedure takes exception to the judgment and decree
passed by the First Appellate Court dated 15.01.2019 in
RCA No. 268/2017, whereby the judgment and decree
passed by the Trial Court in RCS No. 212/2006 came to
be set aside. The First Appellate Court has dismissed
the counter-claim filed by the Defendant and decreed
the suit. The Defendant is directed to handover the
peaceful and vacant possession of land admeasuring 4R
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encroached by her in the land of Plaintiff as shown in
map Exh. 86. Perpetual injunction was also granted
obstructing possession of the Defendant over suit
property.
3. The facts which led to the filing of the suit
by Plaintiff indicates that Plaintiff claims to be
owners of land admeasuring 33R from Gut no. 544
situated at Belwandi Bk, Tq. Shrigonda, Dist.
Ahmednagar. He also claims to have inherited suit
property from his ancestors. It is the contention of
the Plaintiff that Defendant had purchased 20R land
from Gut No. 544 towards northern side. There is
allegation about Defendant having been obstructing
peaceful possession of the Plaintiff over suit
property. During the pendency of the suit, plaint came
to be amended and when it was found that Defendant has
encroached upon 4R land, possession of the encroached
portion is sought.
4. Defendant resisted the suit by filing written
statement and counter-claim. It is his case that he is
owner and is in possession of land toward northern side
of Gut No. 544 to the extent of 20R land. It is claimed
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that that suit land was purchased under a registered
sale deed. Defendant denied title of the Plaintiff over
the suit property. It is also claimed by Defendant that
the installation of the mobile tower was permitted by
Plaintiff in his land and being aggrieved by the same,
the suit came to be filed by Plaintiff. It is claimed
in the additional written statement pursuant to the
pursuant to amendment to the plaint that there is no
encroachment over the suit property and if it so found,
the Plaintiff claims to have become owner thereof by
adverse possession. Trial Court dismissed the suit and
allowed counter-claim, whereas First Appellate Court
reversed the said findings and decreed suit with
dismissal of counter-claim.
5. Learned Counsel for the Defendant submits that
the First Appellate Court has committed error in
decreeing the suit and dismissing the counter-claim on
the ground that the Defendant has not entered into
witness box and she has examined her husband. It is his
submission that since her husband had personal
knowledge about facts, examination of husband was
sufficient for Plaintiff to prove her case. It is his
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further submission that the evidence of surveyor
indicates that the survey was not carried out of the
disputed land properly as it does not reflect the fact
of installation of tower. It is his further submission
that the First Appellate Court has committed error in
considering the evidence on record, which amounts to
perversity.
6. Learned Counsel for the Plaintiff supported
the impugned judgment and decree. It is his contention
that once it is proved by examining the surveyor that
Defendant is holding over and above 20R land, which was
purchased by him and that there is no other occupier in
Gut No. 544, the findings recorded by the First
Appellate Court with regard to the encroachment cannot
be faulted with.
7. It is settled position of law that unless
substantial question of law is involved, this Court
would not get any jurisdiction to entertain the Second
Appeal.
8. Perusal of the judgment indicates that the
First Appellate Court has not rejected the counter-
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claim of the Defendant solely on the ground that the
Defendant did not enter upon witness box. The First
Appellate Court had taken into consideration the
admitted fact that the Defendant has purchased 20R land
towards northern side of Gut No. 544. The evidence led
by the surveyor sufficiently indicates that Defendant
though has purchased 20R land but is in actual
possession of 24R land. The findings of fact recorded
by the First Appellate Court, which was permissible for
the First Appellate Court to record the same afresh,
are not perverse.
9. Once it is admitted fact the Defendant is the
owner of the 20R land whereas the Plaintiff is owner of
the rest of the land and there is evidence to indicate
more than 20R land being held by Defendant, the
findings recorded to the effect that there is
encroachment of 4R land is correct.
10. In fact the perusal of judgment of Trial Court
indicates that it committed error in appreciating
pleadings, evidence and position of law governing the
subject matter. The First Appellate Court rightly
corrected error committed by Trial Court. In the facts
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of the case, findings recorded and conclusion drawn by
Appellate Court are not incorrect much less perverse to
interfere therein.
11. As a result of above discussion, there
involves no substantial question of law. Hence, Appeal
stands dismissed. Pending civil application(s), if any,
stands disposed of.
(R. M. JOSHI, J.)
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