DATTATRAYA RAMCHANDRA KULKARNI Vs. BABURAO DATTU MALI

JUDGEMENT

(1.) THE appellant herein was the original plaintiff and the respondents herein were the original defendants. The original plaintiff had filed a Regular Civil Suit No. 50 of 1980 before the Court of Civil Judge, Junior Division, Kagal, contending therein that the defendants had encroached into the land which was in possession of the plaintiff in Survey No. 118, Hissa No. 2 admeasuring about 3-R (three gunthas ). It was the case of the plaintiff before the trial Court that on the said area of 3 gunthas which was encroached upon by the defendants, there were three mango trees and that the said encroachment had taken place some time in February 1976. It is the case of the plaintiff that the plaintiff is the owner of an ancestral property which included the above suit land also.

(2.) BEFORE the trial Court, the plaintiff had contended that the plaintiff had been in possession of the said land ever since 1956, and sometime in the year 1976 the defendants have encroached upon the said land and have dispossessed the plaintiff. The plaintiff had also pointed out that in view of the aforesaid encroachment the plaintiff had also applied to D. I. L. R. for measurement of the said land and accordingly, the concerned revenue authorities, after giving notice to all the concerned persons and encroachers measured the suit land on 21st April, 1977. It appears that the notice of taking such a survey was also served on the defendants who have admitted the receipt of such a notice. It was the case of the plaintiff before the trial Court that even from the said survey taken by the authorities, it was very clear that the defendants had encroached upon the plaintiffs suit land.

(3.) THE trial Court, after recording the evidence and going through the records, by its judgment and order dated 29th October, 1983 had decreed the suit in favour of the plaintiff. The trial Court has given a categorical finding that the plaintiff (appellant herein) was in continuous possession of the suit land right from 1956 till 1976. The trial Court has also rejected the defence of the defendants that they were the permanent tenants of the said suit land. The trial Court has come to the conclusion that the defendants were the trespassers on the said land which was in possession of the plaintiff from 1956 till 1976. The defendants were directed by the trial Court to deliver the possession of the said suit property to the plaintiff. The defendants were also directed to pay to the plaintiff Rs. 30 per annum as the income for the years 1978-79 to 1979-80 which they had enjoined adversely. In addition, the defendants were also directed to pay to the plaintiff Rs. 15 p. a. towards the mesne profits from the date of the suit till the actual delivery of the possession.