JOHNBHAI ISHWARBHAI KHRISTI Vs. RAMANBHAI BHNABHAI VANKAR

JUDGEMENT

(1.) SHRI N.S.Sheth, learned counsel for the appellants. Shri N.J. Shah, learned counsel under the authority of Mr. D.C. Dave for respondents no. 1/1 to 1/3, none for the respondent no.2, Mr.Hukum Singh, learned AGP for the respondent no.3.

(2.) THE plaintiffs, who could secure a decree, lost in the appellate court, therefore, now are before this Court in Second Appeal under Section 100 of the Code of Civil Procedure. The plaintiffs -appellants filed the suit under Order I Rule 8 of the Code of Civil Procedure, submitting that the defendant had made certain encroachment on the public lane, therefore, such encroachment be removed. The plaintiffs submitted that the defendant owns a house admeasuring east -west 29 feet, but he had made encroachment of 21feet towards east -west and has also made encroachment south -north. It was also submitted that on a complaint about the encroachment, Panchayat had issued notice to the defendant to remove the encroachment. The defendant appeared before the Court and submitted that he had purchased the property under exh.66, a registered sale deed dated 23.7.24 and from the measurements given in the said document, it would clearly appear that he has not made any encroachment on the public lane, rather document would prove that he is within his bounds.

(3.) LEARNED trial court held that the defendant had made encroachment and the trial court accordingly directed removal of the said encroachment. The appellate court, after hearing the parties observed that in the document exh.66, east -west measurement is shown as 24 tailor gauge, which on calculation would be 52 feet east -west. The court observed that one tailor gauge would be equivalent to 2 feet 2 inches. It also observed that the measurement of house on north -west was 7 square gauge and as such defendant was sold 168 square gauge. On further calculations, the court found that the defendant was in possession of 49 feet 6 inches as was clear from the map prepared by the Commissioner. According to the court, the defendant did not make any encroachment. On basis of the said document, which was executed in the year 1924, the Court held in favour of the defendant.