Judgment R.C.A.

176-12

Received on :12-04-2012
Registered on:20-04-2012
Decided on :08-03-2016
Duration : 03Ys.10 Ms.25 Ds

IN THE COURT OF DISTRICT JUDGE, SATARA.

(Before A.N.Sirsikar, District Judge-6)

Regular Civil Appeal No.176 of 2012

Exh.

1. Shri Gulab Sambhaji Jadhav

Age-60 yrs.Occu.-Service & business
(2) Smt.Banubai Sambhaji Jadhav APPELLANTS
(Deceased) (Ori. Defendant
3. Sou.Laxmi Gulab Jadhav Nos.1 to 3)
Age-56 yrs.Occu.-Household & business
No.3 for herself and power of attorney
holder No.1 Both r/o Zagalwadi
Tal. Khandala, Dist. Satara.

Vs.

1. Bhagoji Shripati Chavan

Age-75 yrs.Occu. agriculturist
through power of attorney holder
Hanmant Shripati Chavan
Age-59 yrs. Occu.agriculturist
r/o Zagalwadi, Tal. Khandala
Dist. Satara.
2. Shri Dnyaneshwar Dada Thongale
Age-21 yrs.Occu. Education
r/o Zagwalwadi, Tal. Khandala
Dist. Satara.
3. Shri Balasaheb Baburao Thongale
Age-45 yrs.Occu. agriculturist
r/o Zagwalwadi, Tal. Khandala
Dist. Satara.

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4. Shri Gulab Maruti Liman

Age- 80 yrs.Occu. agriculturist
r/o Zagwalwadi, Tal. Khandala
Dist. Satara.
5. Vitthal Maruti Liman Deceased
Through L.R.
5A. Smt.Savitra Vitthal Liman
Age- 83 yrs. Occu. agriculturist
r/o Zagwalwadi, Tal. Khandala
Dist. Satara.
5B. Shri Buvaji Vitthal Liman
Age- 65 yrs. Occu. Pensioner
r/o S.No.23/9,Near Bhawani Mata
Mandir Balajinagar,Pune.
Dist. Pune.
5C. Sou.Janabai Ramchandra Gadhave
Age- 63 yrs. Occu. household
r/o Khandala, Tal. Khandala.
Dist.Satara.
5D. Sou.Shantabai Vasant Jagtap RESPONDENTS
Age- 62 yrs. Occu. household [Respondt.No.1-
r/o Mandaki, Tal. Purandar Ori.Plaintiff and
Dist.Pune. Respondt.Nos.2 to 6
5E. Shri Suresh Vitthal Liman Ori.Deft.Nos.4 to 8]
Age- 57 yrs. Occu. agriculturist
r/o Zagalwadi, Tal. Khandala.
Dist.Satara.
5F. Sou.Shalan Bharat Gadhave
Age- 53 yrs. Occu.household
r/o 46,Mangalwar Peth, Dhas Colony
Plot No.34, Satara,Dist.Satara.
Dist.Satara.
5G. Shri Prakash Vitthal Liman
Age- 52 yrs. Occu. Service
r/o Khandala, Tal. Khandala.Dist.Satara.
6. Shri Bapu Maruti Liman
Age- 79 yrs. Occu. agriculturist
r/o Zagalwadi, Tal. Khandala.
Dist.Satara.

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Judgment R.C.A.176-12

APPEARANCE : Advocate Mr. S.I.Shikalgar for appellants

Advocate Mr.M.D.Khatavkar for respondents

JUDGMENT
(Delivered on 8th March, 2016)

1] This appeal is focused by defendant Nos.1 to 3 animadverting

upon the judgment and decree in Reg. Civil Suit No.66/96 passed by the
learned Civil Judge Jr. Dn.Khandala .

2] In order to avoid confusion parties and exhibit numbers shall

here-in-after be referred to as per their nomenclature and ranking in the
suit.

3] Brief facts of the case are narrated as under :

Subject matter of the suit is northern side 11 ana 4 pai share in

land Gat No.75 of village Zagalwadi Tal. Khandala, Dist. Satara, which
shall here-in-after be referred to as “suit land”. According to the plaintiff
entire land Gat No.75 was and is owned by him. Due to passing of east-
west Lohom Zagalwadi road same has been bifurcated in two parts
southern side and northern side. In southern side portion the plaintiff is
having house and temple which is not in dispute. In the northern side of
land Gat No.75 the plaintiff is in possession. On its western side there are
lands of Vitthal Maruti and others bearing Gat No.68 in which defendant
Nos.1 to 3 have made construction of house prior to about 10 yrs. On the
southern side of their house there is water tank while making construction
they made encroachment of 69 sq. meter portion of triangular shape over
the suit property.
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4] Defendant Nos.1 to 3 belongs to schedule caste . By taking

benefit of their caste used to make false complaints and tried to dispossess
the plaintiff from the suit land . The plaintiff therefore on 30/5/1996 got
measured the land Gat No.75 through T.I.L.R.Khandala wherein it has
been noticed that defendant Nos.1 to 3 have made encroachment of water
tank and toilets to the extent of 69 sq. ft. over the suit land which shall
here-in-after referred to as encroached portion.

5] The plaintiff thereafter demanded the possession of encroached

portion to defendant Nos.1 to 3. They refused to deliver the same. They
also caused obstruction in possession of the plaintiff over the suit land. The
plaintiff also sought relief of injunction against defendants restraining them
from causing obstruction in possession over the suit land which is shown in
red colour in the map annexed with the Plaint. The plaintiff sought
possession of encroached portion.

6] The plaintiff has impleaded defendant Nos.4 and 5 as formal

party because some portion in land Gat No.75 has been transferred to them.

7] Defendant Nos.1 to 3 resisted the suit contentions by filing

Written Statement. They have denied plaintiff’s title and possession over
the suit land. It is denied that they made encroachment over any portion of
the suit land. Suit land was previously owned by Babu Hari, Vijay and
Nababai Vithu Liman. In the year 1950 Baburao Krishna Patil was working
as Police Patil of Zagalwadi. The plaintiff is nephew of Baburao. The
plaintiff is resident of Surur, Tal. Wai, Upto the year 1978-79 he never
came to Zagalwadi. Defendant No.1’s father Sambhaji was of mang
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community. He was doing the work of making broom and ropes, besides
the work of kotwal. He being kotwal was having good relations with
Bapurao Patil. In the year 1950 Babu and Nababhai given 40 R land out of
land S.No.5/15 and 5/16 to Sambhaji Jadhav for his livelihood . He made
construction of house in it and since then is in occupation of the same.
Thereafter Sambhaji purchased 40 gunthas land for valuable consideration
of Rs.500/- Baburao was having knowledge of this fact, he subsequently
on 18/7/1962 executed sale deed in favour of the plaintiff however
possession was never delivered to the plaintiff.

8] In the year 1978 the plaintiff came to Zagalwadi for village

fair. At that time Sambhaji had sown bajari and matki in the year 40 R
portion. At that time the plaintiff disclosed the transaction dt. 18/7/1962
and demanded possession . Defendants refused to deliver possession. In
such circumstance they have claimed acquisition of title by virtue of
adverse possession. They by filing counter claim have sought declaration
of their ownership over 40 R portion by virtue of adverse possession.

9] It is their contention that the plaintiff in collusion with surveyor

prepared false measurement map. They have denied the measurement dt.
30/5/1996 . As the plaintiff is not in possession there is no question of
causing of obstruction. In such circumstance according to them the
plaintiff is neither entitled for the relief of perpetual injunction nor for
possession of any portion of land.

10] Defendant Nos.6,7,8 who are owners of land Gat No.63 have
also filed written statement . According to them one guntha land in
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Judgment R.C.A.176-12

northern side portion of land Gat No.63 was given to defendant No.3 prior
to eight-ten years for the purpose of residence. The suit land is towards
eastern side land Gat No.63. They have not disputed the fact of
encroachment made by defendant No.1 to 3 over portion of suit land. They
have prayed to decree the suit as against defendant Nos.1 to 3 only.

11] Deft Nos.4 and 5 have filed their written statement vide Exh.28
and admitted the claim of the plaintiff. According to them on 21/12/1995
they have purchased the land from the plaintiff from his Gat No.75 to the
extent of 4 ana 10 pai share and are in possession of the same.

12] The plaintiff by filing written statement has denied the counter
claim of defendant Nos.1 to 3. He has denied defendant Nos.1 to 3’s
possession over portion of suit land from the year 1950 as alleged by them.
According to him the plea of adverse possession is not tenable. The
allegations are very vague, and thus prayed for dismissal of the counter
claim.

13] The learned trial court after assessing evidence has accepted
the plaintiff’s case and consequently decreed the suit dismissed the counter
claim. This order is challenged under appeal.

14] Learned advocate for defendant Nos.1 to 3 has submitted that

the trial court has not considered the legal and factual aspect of the case.
The title of the suit land and the measurement dt. 30/5/1996 have not been
proved. However the trial court has erroneously directed defendant Nos.1
to 3 to deliver the possession of encroached portion to the plaintiff.
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Judgment R.C.A.176-12

According to him defendant Nos. 1 to 3’s possession over the suit land
since 1950 has been proved. There was no obstruction till 1978, thus by
virtue of adverse possession they acquired the title. The counter claim was
required to be decreed.

15] Per contra his adversary learned advocate for the plaintiff while
supporting the impugned order has submitted that title of the plaintiff over
the suit land has been proved. The contents of map prepared by surveyor
have been proved as the surveyor is no more, he could not be examined.
The plaintiff being owner is entitled to recover the possession of the
encroached portion. Thus the suit has rightly been decreed. The pleadings
of the defendants are self contradictory . They are claiming to be in
permissive possession of the suit land, in such circumstances they can not
take plea of adverse possession.

16] Considering the rival pleadings of the parties and after going
through the record of the case following points arise for determination and
I have recorded findings with reasons are as under :
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has proved his title over the Yes
suit land ?
2. Whether the plaintiff has proved the No
encroachment over the suit land ?
3. Whether the plaintiff has proved his possession Yes
over remaining portion of the suit land ?
4. Whether defendant Nos.1 to 3 acquired title over No
40 R portion of land Gat No. 76 by virtue of
adverse possession ?

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Judgment R.C.A.176-12

5. Whether the plaintiff is entitled for recovery of No

possession ?
6. Whether defendant Nos.1 to 3 are entitled for the No.
relief of declaration ?
7. Whether the plaintiff is entitled for the relief of Yes.
perpetual injunction ?
8. Whether the impugned judgment is legal and Partly yes.
proper ?
9. What order ? Appeal is
partly
allowed.

R EASONS

17] For substantiating their respective claim parties have placed on

record various documents such as grampanchayat record, sale deeds,
measurement map etc..

18] The plaintiff has examined his power of attorney holder who is
his real brother as P.W.1 Hanmant Chavan P.W.2 Vitthal , P.W.3 Suresh ,
P.W.4 Ramdas Raut, P.W.5 Village Development Officer Dipak Sonawane
P.W.6 Sandesh Mane and P.W.7 Anil Joshi. While on behalf of defendants
they have examined defendant No.3 Laxmi Jadhav as D.W.1 and Popat
Liman as D.W.2.

As to Point No.1(title)

19] The plaintiff is claiming title over the suit land by virtue of
registered sale deed dt. 18/6/1962 filed below Exh.318. It shows that he
purchased from Babu Hari Liman 11 ana 6 pai share in land S. No.5/15.
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Judgment R.C.A.176-12

The contents of the sale deed Exh.318 have been proved from evidence of
P.W.7 Anil Joshi who is son of scribe Narayan Joshi. He has identified
handwriting and signature of his father on Exh.318 . Consolidation record
Exh.94 shows that land Gat No.75 was made from land S.No.7/2-C, 7/2-D,
7/2-A, 7/2-B, 7/3 and 5/15 . It was totally admeasuring 70 R. It seems that
after purchasing the land plaintiff’s name was mutated in the revenue
record of the land S.No.5/15. In Consolidation record Exh.94 the plaintiff
is shown to be owner of entire land Gat No.75 to the extent of 70 R
portion. The consolidation record further shows that land S.No.5/15 was
amalgamated with other fragments and land Gat No.75 was allotted to it.

20] Revenue record was thereafter accordingly prepared on the

basis of consolidation record . Name of the plaintiff is appearing in record
of right of land Gat No.75 as owner and possessor continuously since
1977-78 . It may be noted that prior to that name of the plaintiff was
mutated in respect of record of right of land S.No.5/15 wherein he is
shown to be in possession from 1962-63 on wards till 1976-77 i.e.till
preparation of consolidation record.

21] Defendant Nos.1 to 3 have come with a case that Sambhaji

Jadhav since 1950 was in occupation of northern side 40 R land of Gat
No.75. It may be noted that they have not specifically clarified the survey
No. of the land in which they were in possession. It is vaguely stated that it
was out of S.No.5/15 and 5/10. Gat No. was allotted in the year 1976-77.
According to defendants in the year 1957 Babu Liman was in need of
money therefore by accepting Rs.500/- from Sambhaji sold the land
however sale deed was not executed and it was oral sale. I think that in
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Judgment R.C.A.176-12

view of amount of consideration of Rs.500/- as per provisions of Sec.54 of

the Transfer of Property Act Such sale can only be made by registered
instrument. The contention of defendants are very vague. They have not
mentioned the boundaries or S.Nos. of land purchased by Sambhaji. There
is no clarification as to why the name of Sambhaji was not mutated in the
revenue record.

22] It is not in dispute that plaintiff sold 4 ana 10 pai share in land
Gat No.75 to defendant Nos.4 and 5 . It is also not in dispute that due to
passing of Lohom Zagalwadi road the land it has been divided into two
portions. 14 R land has been acquired from land Gat No.75 for the purpose
of said road.

23] Plaintiff has also paid land revenue of land Gat No.75. All
these facts show that the plaintiff has proved ownership over suit land Gat
No.75. Point No.1 is accordingly answered in the affirmative.

As to Point No.2(encroachment)

24] The plaintiff has come with the case that defendant Nos.2 and 3
have made encroachment to the extent of 74 sq.meters over the suit land .
They made construction of toilet and water tank in the encroached portion,

25] It is not in dispute that defendant Nos. 1 to 3 are having their

house in land Gat No.63 which is adjacent to land Gt No.75. Defendant
Nos.6 and 7 owners of land Gat No.63 have contended that possession of
defendant Nos. 1 to 3 is with their permission. According to the plaintiff
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Judgment R.C.A.176-12

on his application T.I.L.R. measured the land Gat No.75 on 30/5/1996 and
opined that defendant Nos.1 to 3 have made encroachment over the suit
land. He accordingly prepared the map of measurement Exh.195. It seems
that Court Commissioner was appointed for carrying out measurement who
accordingly carried out measurement on 30/7/2007 and prepared map
Exh.183 wherein he has also shown the encroachment made by the
defendant Nos.1 to 3 over land Gat No.75. It may be noted that defendants
have denied the measurement but the said surveyor who has actually
carried out measurement has not been examined, he is reported to be dead.
I think that if it was so then it was necessary for the plaintiff to prove the
map by any other mode as contemplated under Chapter V of the Evidence
Act.

26] Learned advocate for the defendant Nos. 1 to 3 in this regard

has rightly relied upon
i. "Ushabai w/o Sharadchandra Bannore Vs. Wasudeo s/o
Baliramji Mehare and others"2004(2) Mh.L.J.594 .

ii. "Ramzan Sheikh Chand Sheikh (since deceased) through his

L.Rs. and others. Vs. Panjab s/o Nathalie Gawande"
2014(6) Mh.L.J.97
iii. "Joseph John Peter Sandy Vs. Veronica Thomas Rajkumar
and another" 2013(4) Mh.L.J.1
iv. "Khurshed Banoo W/o Murtaza Hasan (deceased by L.Rs.)
Vs.Vasant Mallikarjun Manthalkar (deceased by L.Rs.)"
AIR 2013 (3)Bombay 52
Wherein it has been held that without proper proof the
commissioner's report can not be read in evidence.

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Judgment R.C.A.176-12

27] Per contra learned advocate for the plaintiff has submitted that
even in the absence of evidence of surveyor map can be relied on.

28] Learned advocate for the plaintiff in this regard has relied upon
(i)"Harbhajan Singh Vs. Smt. Shakuntala Devi Sharma
and another"AIR 1976 Delhi 175

(ii)"Smt.Laltoomani Mohanty Vs. First Additional District

Judge, Cuttak and others" AIR 1996 Orissa 141.

29] I have gone through said case laws. Facts of the case before
Delhi High Court and Orissa High Court are totally different.

30] The case before Delhi High Court is for eviction of tenant
under Rent Act. The Commissioner was appointed as to who was in actual
occupation of tenanted premises.

31] Hon’ble Orissa High Court has held that evidentiary valaue of
the report would be judged by the court while evaluating the entire
evidence on the record. In the present case measurement conducted by the
plaintiff through surveyor has been denied by the defendants. There is
variance between two reports about the extent of the encroachment. Thus
the decision of Hon’ble Bombay High Court in Ushabai's case and
Khursheda Banoo's case supra would prevail. In other words it can be said
that without proper proof of the map same can not be relied on.

32] The plaintiff could have prove the contents of map by calling
original record and by examining the person acquainted with the

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Judgment R.C.A.176-12

handwriting and signature of deceased surveyor . Considering all these fcts

I hold that contents of map Exh.183 have not been proved. In other words
it can be said that the plaintiff has failed to prove the fact that defendant
Nos.1 to 3 have made encroachment over land Gat No.75. Accordingly I
answer point No.2 in the negative.
As to Point No.3 ( Possession )

33] The revenue record of land S.no.5/15 and the land S.No.75
shows plaintiff’s possession over the respective lands since 1962. There is
presumption about correctness of entries in revenue record and contrary
has to be proved by other party . Although defendants are claiming to be
in possession since 1950 their name is not appearing in the revenue record.
There is sufficient documentary evidence to show that the plaintiff has
been residing at Zagalwadi with his maternal uncle. He also studied in
school at Zagalwadi . For some period he was also Deputy Sarpanch of
grampanchayat Zagwadiwadi. Thus the contention of defendants that
plaintiff being residence of Surur was never in possession of suit land is
devoid of merits.

34] Portion of land Gat No.75 was acquired by State of

Maharashtra for laying Lohom Zagalwadi road. The plaintiff has also
produced on record documents pertaining acquisition of land and payment
of compensation. He received the compensation, in award also his name is
appearing as owner and recipient of the compensation. In the year 1990-91
the plaintiff made application for laying pipeline from land Gat No.90 to
land Gat No75 with Zilla Parishad Sub Division Khandala . His application
Exh.286 and the orders issued by the office permitting him to do so have
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been proved.

35] Defendants to prove their possession have examined D.W.2

Popat Liman who claims to be in possession of portion of land Gat No.75.
The revenue record of land Gat No.75 does not support his contention . His
evidence is also very vague . He has not stated the details of the portion
over which defendants are having possession.

36] There are documents to show that some of the defendants are
residing at Mumbai for their livelihood, in such circumstances it is very
difficult to accept contentions of defendants that they are in possession of
suit. The learned trial court has rightly hold plaintiffs’ possession over
remaining portion of the suit land. I, therefore, answer issue No.3 in the
affirmative.
As to Point No.4,5 and 6(adverse possession and declaration )

37] Defendants have taken contradictory plea . According to them

they have purchased 40 R portion of land by oral sale for consideration of
Rs.500/- and are in permissive possession. Permissive possession can not
be said to be an adverse possession . Moreover defendants 1 to 3 have
failed to prove their possession over remaining portion of land .

38] Hon’ble Supreme Court in a case "Gurdwara Sahib

Vs.Grampanchayat village Shirthala and another" 2014 (4) Mh. L. J.
74 has held that a person in adverse possession can use his adverse
possession as shield / defence. He can't seek relief of declaration of title.

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39] I, therefore hold that defendant Nos.1 to 3 are not entitled for
the declaration as prayed by them by way of counter claim.

As to Point No.7 ( injunction )

40] Plaintiffs’ have proved their possession over the suit land .
Defendants have denied plaintiffs’ right and possession over the suit land
in such circumstances the plaintiff is entitled for the relief of perpetual
injunction.

41] Learned advocate for defendants relying upon a case "Janki

Bhojwani Vs. Indusind Bank 2005 (1) Mh.L.J.1170 (S.C.) has submitted
that evidence of P.W.1 being of power of attorney holder is not admissible.
I think that P.W.1 in his evidence has stated that he is acquainted with the
facts of the case has personal knowledge thus he can depose for the
plaintiffs . The case law is not applicable to the present case.
Point No.7 is accordingly answered in the affirmative.

As to Point No.8 (legality of impugned judgment)

42] The learned trial court was right in holding the plaintiffs’ title
and possession over the suit land but she has committed an error in
drawing an inference that defendant Nos.1 to 3 have made encroachment
over portion of the suit land Point No.6 is answered accordingly in the
affirmative.

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43] In the result appeal succeeds to some extent, hence following

order.
Order

(1) Appeal is partly allowed with proportionate costs in following

manner.
(2) Clause No.3 of the impugned order passed by the trial court
regarding delivery of possession of the encroached portion to
the plaintiff is quashed and set aside.

(3) Rest of the order of the trial court is confirmed.

Dictated and pronounced in open court.

Satara.
Date: 08/03/2016.
Dictated on : 08/03/2016
Transcribed on:11/03/2016
Checked and signed on :
( A. N. Sirsikar )
District Judge-6, Satara.
/03/2016.

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