Second Appeal No.582 of 2005

7th August, 2008

Petitioner Counsel: Mr. V. D. HON
Respondent Counsel: Mr. R. S. DESHMUKH

Cases Cited:
P. Chandrasekharan Vs. S. Kanakarajan, 2007(3) ALL MR 826 (S.C.) [Para 4]
State Bank of India Vs. S. N. Goyal, 2008 ALL SCR 2139 : 2008 AIR SCW 4355 [Para 6]

JUDGMENT

JUDGMENT:- Appellants in this second appeal are original defendants in Regular Civil Suit No.24 of 1997, filed by the Respondents/plaintiffs on 30th January, 1997. The suit was for possession of alleged encroached area to the extent of 00 Hectare 14 Ares. Parties hereinafter are referred to their status in Regular Civil Suit No.24 of 1997.

On receipt of the suit summons, defendants entered appearance and filed their written statement.

Trial Court framed as many as eight issues. Parties led their evidence, oral-documentary. Trial Court, considering the evidence on record, decreed the suit on 3rd February, 2001. It was challenged by the defendants by filing Regular Civil Appeal No.32 of 2001 in the Court of learned District Judge at Jalna. This appeal, filed by the defendants, after hearing the parties, came to be dismissed by the judgment and order passed on 23rd December, 2004. This judgment and decree, passed by the first Appellate Court, in Regular Civil Appeal No.32 of 2001, is challenged by the aggrieved defendants, by filing this second appeal.

2. Mr. V. D. Hon, learned counsel for the Appellants, has invited my attention to the grounds in this second appeal, according to him involving substantial questions of law, which are reproduced herein below:

"IV) Whether the lower court has committed an error in interpreting the document of the T.I.L.R. report and the sketch submitted by him to the court and thereby have resulted into injustice.

V) Whether the lower Court ought to have taken into consideration that from the T.I.L.R.'s report, the measurement shows that the suit land as shown by the plaintiff Gat No.15 - 1 H. 49 R. and the T.I.L.R. has shown the said property as nearly 1 H. 68 R. whereby 19 R. have been shown excess and this fact itself goes to show that the report and the sketch of the T.I.L.R. is contrary to the record.

VII-A) Whether both the lower courts erred in not considering the fact that as per the provisions of Order 7, Rule 3 read with the amendment dt.01-10-1993 of Bombay High Court amendment in Code of Civil Procedure there is no description of the property and in the plaint and no specific boundaries in respect of the suit land is given, therefore, in absence of specific boundaries the suit filed by the plaintiffs was liable to be dismissed.

VII-B) Whether both lower courts have committed error in not considering the provisions of Order 7, Rule 3 read with the Bombay High Court Amendment in the Code of Civil Procedure, and therefore, in absence of specific description of the encroached portion the suit was liable to be dismissed.

VII-C) Whether both the lower Courts failed to consider that as per the surveyor manual the surveyor must have to issue notices for measurement of the suit land to all concerned adjoining owner of such land, however, in the present case admittedly no notice has been issued to the appellant, therefore whether the measurements carried out by the T.I.L.R. in derogation of the survey manual is bad and void and therefore, not binding and therefore cannot be relied upon.

VII-D) Whether therefore, the map prepared (Exh.44) by the T.I.L.R. which is sought to be made a basis for filing suit is contrary to law and therefore, cannot be relied upon and therefore, both the lower Courts have erred in relying on the map."

3. Mr. Hon, learned counsel, has taken me through the judgment of the trial Court. Issue No.3 framed by the trial Court was regarding the alleged encroachment to the extent of 00 Hectare 14 Ares by the defendants. Finding recorded by the trial Court is in favour of the plaintiffs. He has also referred to point for determination framed by the first Appellate Court. There were two points for determination framed by the first Appellate Court and point No.1 was regarding the alleged encroachment by the defendants. The first Appellate Court, while considering the appeal under section 96 of the Civil Procedure Code (the Code, for short) recorded its answer to point No.1 in favour of the plaintiffs.

4. Mr. Hon, learned counsel, strenuously urged that the interpretation of document Exhibit-45 is the substantial question of law, in the case on hand. He has referred to Exhibit-45, certified copy of the map and deposition of P.W.2 Mr. Ashok Kolte (Surveyor). According to Mr. Hon, if this evidence i.e. oral evidence of P.W.2 Mr. Ashok Kolte Exhibit-44 and documentary evidence, certified copy of the map Exhibit-45 are read together, it shows that the land to the tune of 01 Hectares 35 Ares was in actual possession of the plaintiffs, on the date of measurement. It is not in dispute that the measurements have been carried out on 17th June, 1996. Land to the tune of 00 Hectares 07 Ares is acquired for the road i.e. Tembhurni-Kalegaon road. Land to the tune of 00 Hectare 12 Ares is allegedly encroached by some other persons, who are not party to the suit. Land to the tune of 00 Hectare 14 Ares is shown to have been encroached upon by the defendants who are owners of land Gat No.16. If this area is considered in its totality, it comes to 01 Hectare 61 Ares. The plaintiffs approached to the Court with a contention that their land Gat No.15, admeasures 01 Hectares 49 Ares. If the case of the plaintiffs, as stated in the plaint, is accepted, that land Gat No.15, owned and possessed by the plaintiffs, is 01 Hectares 49 Ares, the evidence of P.W.2 Exhibit-44 and certified copy of map Exhibit-45 read together show that plaintiffs are in possession of 01 Hectare 61 Ares of land or 01 Hectares 68 Ares of land, definitely more than the area of Gat No.15 allegedly owned and possessed by the plaintiffs, to the tune of 01 Hectares 49 Ares. According to him, this document Exhibit-45 is not properly interpreted by the trial Court. In this second appeal, mainly, he submitted that interpretation of this document Exhibit-45 is the ground involving substantial question of law. In support of his submission, he relied on a judgment of the Supreme Court in the matter of "P. Chandrasekharan & Ors. Vs. S. Kanakarajan & others" reported in 2007(3) ALL MR 826 (S.C.). He has also referred to the sale deed of the land Gat No.16, which defendants have purchased from quondam owner. He has also referred to mutation entry Exhibit-51. According to him, said document Exhibit-51 is thirty years old and has got presumption under section 90 of the Indian Evidence Act.

5. Learned counsel Mr. Deshmukh, who appears for the Respondents/plaintiffs, has invited my attention to the judgment of the trial Court as well as first Appellate Court. He also refers to document Exhibit-36 - extract of register of consolidation. He had read the observations of the trial Court, which has considered document Exhibit-36 i.e. the map prepared by the authorities under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (the Act of 1947, for short). Mr. Deshmukh submits that the trial Court has considered two documents i.e. Exhibit-36 and Exhibit-45 together. Referring these two documents, the trial Court has inferred that road, which was running from land Gat No.16 owned by the defendants, probably must have been shifted to some other survey number. The provisions of the Act of 1947 have been made applicable to this land Gat No.16 owned by the defendants, somewhere in the year 1980. Exhibit-36 i.e. Statement of Consolidation - statement showing the position before implementation of the provisions of the Act of 1947 and statement showing the position after implementation of the provisions of the Act of 1947. According to him, the fact of encroachment, is a finding of fact recorded by the trial Court based on the oral and documentary evidence. This finding of fact has been accepted by the first Appellate Court, while considering the appeal under section 96 of the Code. He, therefore, submitted that no substantial question of law is involved in this second appeal and the appeal be dismissed.

6. The record and proceeding is available. Both the learned counsel have referred to record and proceedings, while addressing the Court. The pleading in civil suit is important. The parties to the civil litigation are expected to plead material facts before the Court. First opportunity is available to the plaintiff/s approaching to the civil Court. The grievance of the plaintiff/s in the form of material facts is expected to be pleaded in the plaint itself. On issuance of the summons, the defendant/s, in fact, is/are called upon to meet the pleading of the plaintiff/s and apart from response to that pleading, is/are expected to plead his/their own case. This pleading is defined under Order 6, Rule 1 of the Code. In relation to plaintiff/s, plaint is the pleading and written statement is the pleading in relation to the defendant/s. This pleading is important from two more view points. The Court, at the first instance i.e. the trial Court has to frame issues under Order 14 of the Code while considering the rival pleadings of the parties. The trial Court, thus, has to find out the issues on which parties are quarrelling and do not have consensus. Settling issues by the trial Court, gives opportunity to the parties in perceiving the burden of proof, either it is placed by the Presiding Officer or trial Court, on the plaintiff/s or defendant/s. This facilitates the parties to lead their evidence under Order 16 of the Code. Another important aspect of the pleading is the leading of oral/documentary evidence by the parties. Order 6, Rule 2 provides that variance in pleading and proof is not permissible. If any of the party to the suit leads oral evidence, beyond its pleading, it being in variance with the pleadings, cannot be read in evidence. That is how, it is stated by the Supreme Court in the matter of "State Bank of India & Ors. Vs. S. N. Goyal" reported in 2008 Vol. (26) AIR SCW 4355 : [2008 ALL SCR 2139]. Honourable Supreme Court stated that foundation of the case of the party has to be there in the pleadings. Thus, pleading of the party in a civil litigation is important and significant.

7. I have perused the plaint from the copy of the paper book supplied to the parties by the office of the learned District Judge. Plaintiffs, in their suit, have pleaded that land Gat No.15 admeasuring 01 Hectare 49 Ares is situated at village Kalegaon, Taluka Jafrabad. The defendant Nos.1 to 3 are adjacent land holder from Southern side of land Gat No.15 (suit property) and towards North side, defendants land i.e Gat No.16 is situated. The defendant Nos.1 to 3 have gradually made encroachment from Northern side of suit property. Plaintiffs applied to the T.I.L.R., Jafrabad for measurement of land Gat No.15. Suit property was measured by the T.I.L.R. Alleged encroachment committed by the defendants is to the extent of 14 Ares, over the suit property. The plaintiffs have given the date of measurement in para 4 as 17th June, 1996 and have further pleaded that possession of the alleged encroached area was requested from the defendants who have refused to deliver the possession of said alleged encroached area. In para 3 of the plaint, plaintiffs have pleaded that "the Photo copy of map is filed herewith for perusal. The certified copy of the map would be made available at the time of evidence." With this pleading, this suit was filed by the plaintiffs on 30th January, 1997.

8. Defendants, after entering appearance, have filed their written statement Exhibit-16. In para 1 of the written statement, they admitted the ownership of the plaintiffs regarding land Gat No.15 i.e. the suit property, however, denied the contention of the plaintiffs that the said land admeasure 01 Hectare 49 Ares. It is pleaded by the defendants that the 7/12 extract of suit property is fabricated and false document showing the area to the tune of 01 Hectare 49 Ares of the suit property. Fact that defendants are owner of land Gat No.16 i.e. neighbouring land from the Northern side is also denied in para 2 of the written statement. According to the defendants, to the Northern side of the suit property Tembhurni-Kalegaon road is situated and land Gat No.16, owned by the defendants, is to the Northern side of this Kalegaon-Tembhurni road. The suit property and land Gat No.16, owned by the defendants, according to the defendants, is separated by the Tembhurni-Kalegaon road. In para 2 of the written statement, Statement is made that "it is pertinent to note that southern portion of the land admeasuring 0.30 Ares out of land Gat No.16 was acquired by the Maharashtra Government for the above said road "Tembhurni to Kalegaon" from the previous owner of Gat No.16, more than thirty years back. In para 3, it is pleaded by the defendants that, there was no measurement of land Gat No.15. The plaintiffs, in connivance with T.I.L.R., obtained fabricated documents and have based their claim on such fabricated and false documents. Map drawn by the T.I.L.R. Exhibit-45 is not admitted or accepted by the defendants in this written statement. In para 6 of the written statement, grievance is made that the State Government is not joined as party and suit is not maintainable or the Court seized with the suit do not have jurisdiction in view of the provision laid down under section 32 of the Bombay Civil Courts Act. In para 7 of the written statement, it is pleaded that Tembhurni to Kalegaon road was made after acquisition of southern portion of land Gat No.16 owned by the defendants, to the extent of 00 Hectares 30 Ares. Said acquisition was from old Survey No.2 which now has been converted to land Gat No.16. Erstwhile owner Mr. Eduba Tulshiram Chavan was the owner of land Survey No.2 and acquisition for the said road was at the instance of Zilla Parishad. In additional written statement, para 8, it is pleaded that land Gat No.16 owned by the defendants, admeasures 8 Hectares 04 Ares, which was previously recognised as Survey No.2 in the revenue record and was owned by erstwhile owner Mr. Eduba Chavan. After acquisition of area to the tune of 00 Hectares 30 Ares, thirty years back, mutation has been effected into the record of rights, i.e. mutation entry No.381. The husband of defendant No.1 has purchased the land Gat No.16 from erstwhile owner Mr. Eduba Chavan by registered sale deed dated 30th December, 1968. Said document is also produced on record. It is further pleaded that, thereafter, family partition has been effected and accordingly land Gat No.16. admeasuring 7 Hectares 74 Ares was allotted to the share of Laxman Kaduba Mhaske and defendant Nos.1 to 3. Accordingly, mutation has been effected into the record of rights. Xerox copy of the sale deed is on record. In para 10 of the written statement, it has been reiterated that in between suit property and land Gat No.16 public road i.e. Kalegaon-Tembhurni is situated and, therefore, allegation of encroachment by the defendants is denied. In the last para of written statement, allegations are made against Vinayak Chavan, who, according to defendants, has obtained the fabricated record from the T.I.L.R. and said Vinayak Chavan is indisputably husband of plaintiff No.1 and father of plaintiff No.2.

9. I have extensively referred to the pleadings of the parties. Few infirmities and/or facts I have noticed from pleadings of both the parties. In the suit, plaintiffs have not pleaded as to whether any part of land Gat No.15 was acquired at any point of time for public purpose or more specifically for Tembhurni-Kalegaon road. In the written statement, there is no pleading, as to whether defendants have received notice of measurements. Silence, on the part of the defendants, in their written statement, regarding receipt or non-receipt of notice of measurement is significant from the view point that plaintiffs in the plaint have specifically given a date of measurement in para 4 as 17th June, 1996. In para 3, plaintiffs have specifically pleaded that photo copy of the map prepared by T.I.L.R. is filed for perusal, meaning thereby, that was filed along with the plaint itself. On the first date of appearance, defendants were aware that alleged measurements are dated 17th June, 1996 and photo copy of the map shows encroachment allegedly made by the defendants. They were expected to plead receipt or non-receipt of the notice and their knowledge as to whether measurements have taken placed on 17th June, 1996, factually. Thus, submission of the learned counsel Mr. Hon that there was no notice is lacking foundation in the pleading i.e. in the written statement itself. Land Gat no.16 was not measured is a fact, which is not in dispute, in the case on hand. Ordinarily, apart from the land, which is sought to be measured, the surveyor or expert concerned has to consider the requirement of measurement of adjoining lands. But, then, it is for the expert to decide, considering the facts obtaining in the case. Such measurement or such aspect may differ from case to case. But for the party, such party is getting opportunity twice, if it has received notice and has attended the measurement, to make a grievance there and at the time of measurement only. In the absence of receipt of such notice and in the absence of such party for valid reason, such party can, thereafter, can seek independent measurement of his own land and/or seek measurement of the same properly done by Nimtanedar i.e. superior officer of the survey department and in accordance with the provisions of the Survey Manual. In the case on hand, land gat No.16 indisputedly is not measured. But such plea or pleading is not made in the written statement. For substantial question of law, there has to be a foundation in the pleading of the parties. In that case, the trial Court as well as first Appellate Court gets an opportunity to assess the evidence led by the parties and come to a conclusion. In the absence of such pleading, it is not possible for me to accede to the submissions of learned counsel for the Appellants that the measurement in the case is vitiated because of lack of notice to the defendants and due to non-measurement of the land Gat No.16. While making these observations, I have also considered the evidence of Mr. Ashok Kolte Exhibit-44, who has confirmed the issuance of notice, however, admitted, in the cross-examination, that he does not know as to whether the notice has been received by the defendants. In my view, therefore, now it is high time to accept these two grounds holding that these two grounds i.e. non-receipt of the notice and non-measurement of the land Gat No.16 are the substantial questions of law.

10. I have also considered the submissions made by learned counsel Mr. Hon regarding excess area in the holding of the plaintiffs, to the tune of 1 Hectare 61 Ares. It is not in dispute that in the written statement, defendants have pleaded that land to the tune of 00 Hectare 30 Ares has been acquired by the State Government from earlier land survey No.2, which was owned, at the relevant time, by one Mr. Eduba, for construction of Tembhurni-Kalegaon road. In that case, this 30 Ares land, which is acquired by the State Government, needs to be deducted from the area of survey No.2/3, which is now converted to Block No.16 in favour of the defendants. The land Gat No.16, now is claimed to be owned and possessed by the defendants. It is, according to their pleading, 08 Hectares 04 Ares. This land to the tune of 30 Ares, if we deduct from land Gat No.16, which is claimed by the defendants to the extent of 08 Hectares 04 Ares. In that circumstance, the part of land Gat No.16 would remain as 07 Hectares 74 Ares. The 7/12 extract of land Gat No.15 i.e. the suit property, and Gat No.16 i.e. the land owned by defendants, are on record. I have seen 7/12 extract Exhibit-5 of land Gat No.16. Name of Kondabai Laxman Mhaske and Ganesh Laxman and Shalik Laxman are mentioned in occupancy column. Area of this land Gat No.16 is shown as 07 Hectares 99 Ares. Thus, if this area, shown in the 7/12 extract of Gat No.16, land owned and possessed by the defendants, is added to acquired area, from this land Gat No.16, to the extent of 30 Ares, the total area of land Gat No.16 comes to 08 Hectares 30 Ares which is not the case of defendants themselves. They pleaded in the written statement that their holding in land Gat No.16 is 08 Hectares 04 Ares. Suffice it to note that acquisition of land to the tune of 30 Ares, out of Gat No.16, is also recorded in 7/12 extract Exhibit-5 under mutation entry No.381. This mutation entry No.381 is also produced at Exhibit-51. Thus, the area of the land Gat No.16, if considered and accepted from the pleadings of the defendants, it would be to the tune of 08 Hectares 30 Ares, considering defendants possession over 07 Hectares 99 Ares as owners and considering 30 Ares ownership with the State Government. In this fact situation also, the question of interpretation of document Exhibit-45 read with oral evidence Exhibit-44 cannot be accepted to be ground involving substantial question of law. The ground Nos.IV and V, therefore, cannot be accepted to be grounds involving substantial question of law.

11. I have perused the judgment of the Courts below. Both the Courts below have considered the oral as well as documentary evidence, produced by the parties. The first Appellate Court concurred with the finding of fact, recorded by the trial Court that defendants have committed encroachment to the tune of 14 Ares over the suit property Gat No.15. This finding of fact, recorded by the trial Court has been accepted and concurred with by the first Appellate Court. The first Appellate Court has considered the oral evidence led on behalf of the parties. Documentary evidence Exhibit-36, Exhibit-51 and Exhibit-45, is also considered by the first Appellate Court. The first Appellate Court thus has concurred with the trial Court. Both the Courts below have considered the situation or location of the public road i.e. Kalegaon-Tembhurni. Both the Courts below have recorded a finding of fact that the land Gat No.15, owned by the plaintiffs, is divided by the Kalegaon-Tembhurni road and to the northern side of this public road, piece of land to the tune of 00 Hectares 14 Ares is situated, which is part and parcel of the land Gat No.15 i.e. the suit property. The first Appellate Court has also considered the nature of the claim of the plaintiffs, though it is a suit for possession of the alleged encroached portion, it is a different type of suit. The first Appellate Court has clarified that alleged encroached portion of 14 Ares is situated towards northern sides of the public road.

12. I have also considered the ground Nos.VII-A, B, C and D. Ground VII-A and B relating to the provision laid down under Order 7, Rule 3 of the Code (Bombay Amendment of 1983). This amendment is dated 1st October, 1983. Chapter VII is titled as "Plaint". Particulars of the plaint are given under Order 7, Rule 1. Order 7, Rule 3 reads thus:

"3. Where the subject-matter of the suit is immovable property.- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."

This amendment is added to Order 7, Rule 3. Rule 3 provides that where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a reord of settlement or survey, the plaint shall specify such boundaries or numbers. The object behind Order 7, Rule 3 (without Maharashtra State Amendment) is for proper identification of the suit property. This is very important from the view point that in case of passing a decree by the Court in favour of the plaintiff/s such decree ultimately needs to be executed through Court under Order 21. Therefore, it is provided that in case of immovable property plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in the record of settlement or survey, the plaint shall specify such boundaries or numbers. Maharashtra State Amendment further adds that in case of encroachment, sketch showing an approximately as possible the location and the extent of the encroachment shall also be filed along with the plaint. In the case on hand, description of the property is justifiably given. Regarding Bombay Amendment, it can be said that amendment contemplates sketch showing approximately as possible the location and the extent of the encroachment along with the plaint. In the case on hand, it can be said that beyond amendment, compliance has been made by the plaintiffs. In the plaint, plaintiffs have made a statement that they approached to the T.I.L.R., land was measured and photo copy of the map drawn by the T.I.L.R. is annexed with the plaint. This annexation of the map with the plaint, drawn by the public servant, has complied with the requirement of Order 7, Rule 3. Therefore, ground Nos.7-A, B cannot be accepted to be the grounds involving substantial question of law.

13. Except the above mentioned grounds, no other ground was pointed out or argued before this Court. In my view, therefore, the second appeal is devoid of grounds, involving substantial question of law. The second appeal, therefore, is dismissed, without any order as to costs.

14. Mr. Hon, learned counsel for the Appellants, seeks ten weeks time and suspension of this Order. I have heard learned counsel Mr. Deshmukh, for the Respondents. In the facts and circumstances of this case, in my view ten weeks' time from today can be granted in favour of the Appellants, meaning thereby this order, in this second appeal, shall stand suspended for a period of ten weeks from today.

15. Since the second appeal itself is dismissed and disposed of civil application No.3987 of 2005, does not survive any more, and the same also stands disposed of.

Second Appeal dismissed.