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Plaintiff fails to prove encroachment as he couldn’t prove the land was owned by him: Bombay High Court.

The Bombay High Court on Tuesday, the 2nd of August, in the year 2022, passed a judgement against the plaintiff as he couldn’t prove the case of encroachment he filed for as he couldn’t prove that the land in question was owned by him. This judgement was seen in the case of Dagdu S/o Rangnath Shingan vs. Sau. Meenabai W/o Venkatrao Shingan (Second Appeal No. 401 Of 2009) and the case was presided over by The Honourable Mr. Justice Bharat P. Deshpande.

FACTS OF THE CASE:

Plaintiff purchased a land from Shankar on 08.05.1991 and he was put in possession of the said land on the basis of an agreement dated 20.07.1990 executed between him and Shankar with the boundaries on his east touching the land of Bhagwat Baban, the boundary on West touching the land of the Defendant No.2 and the South of the property touching the boundary of the Defendant No.1 and the North side touching the property of Dnyanoba Bapurao Shingan which is called as suit land in this case.

The Plaintiff carried out mutation entry in the survey records and started digging well in his land and at that time the Defendants obstructed him by claiming that the portion belongs to the Defendant No.1 which she purchased from the earlier owner Shankar. The Plaintiff submitted an application in the office of Tahasildar at Latur through his vendor for measurement and found that the Defendant No.1 made an encroachment into the southern side of his land. The plaint was then amended and thereafter it was a case of the Plaintiff that Defendant No.1 encroached over the portion of land into the southern side, and Defendant No.2 encroached into the western side.

Both the Defendants contested the suit by filing separate written statement. Defendant No.2, Nagorao, who was the brother of Shankar claimed that the allotment of land to Shankar as claimed in the plaint is incorrect. After multiple divisions of land and after multiple sales only the remaining land available was sold to the Plaintiff, which was not having the area as claimed in the plaint. Thus, it is the contention of Defendant No.2 that there was no encroachment. He further submitted that while orally partitioning the property between him and Shankar, more area was allotted to him being less fertile and Shankar was allotted less land, which was more fertile.

Defendant No.1 in her written statement reiterated the same aspects as claimed by Defendant No.2. Hence both the Defendants claimed that the Plaintiff was put in possession of less land as shown in the sale deed, and his contention regarding encroachment was incorrect.

The Learned trial Court in the impugned judgment dated 21.01.2007 observed that the Plaintiff failed to prove his ownership of the alleged encroached land and the court declared there was no encroachment by the Defendants and the suit was dismissed.

The Plaintiff then challenged the said decision of the learned trial Court before the First Appellate Court however the appeal filed by the Plaintiff was dismissed.

The appeal in Bombay High court was admitted on the basis of the following questions of law:

(i) When both the Courts have held that Shankar has sold 2 hectares 6 acres land to the Plaintiff and when the compromise decree on record shows that the Shankar has received half share i.e., 4 hectares 12 acres land then whether the Plaintiff can be non-suited only on the ground that Plaintiff could not prove that at the time of sale deed he was put in possession of the said land, more particularly, when there is no case of adverse possession by the Defendants ?

(ii) Whether the measurement is legal and proper? 

JUDGEMENT:

The court in its findings of facts recorded below that the court cannot be faulted with answering the first substantial question of law since admittedly the Plaintiff never measured the land, neither at the time of agreement of sale or at the execution of the sale deed or thereafter till the file of the suit. Therefore, through the evidence brought on record by the Defendants and from the cross-examination of the Plaintiff and his witnesses, the more probable reasoning is that the Plaintiff was never put in possession of the land mentioned in the sale deed. In such a situation, claiming encroachment by the Defendants is of no consequence as Shankar had already sold two portions of his land to Balaji and Meenabai and they were in possession of it as owners. Hence, the land allegedly encroached by Defendant No.1 and 2 is in fact actually owned and possessed by them as title holders and the aspect of remanding matter to the trial Court for fresh measurement will not arise at all. The answer to question no.2 of the appeal is answered against the Plaintiff and the measurement is considered legal and proper.

Hence, the appeal stands dismissed.

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JUDGEMENT REVIEWED BY TANAV ZACHARIAH.

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