SHYAMSUNDER RAMBAHOR TIWARI Vs. PRAMILABAI

JUDGEMENT

(1.) Considering the nature of dispute; as also pursuant to earlier order passed by this Court to call R & P in order to hear the matter at the stage of admission itself, this Appeal is taken up for hearing and final disposal at the stage of admission.

(2.) Heard submissions at the Bar. The learned Counsel for the appellant raised dispute regarding identification and boundaries of the suit plot. According to the appellant (ori.defendant), he had purchased Plot No. 68 from Rewatkar Layout, situated at Mouza Dighori, Nagpur admeasuring about 2000 sq.ft. from one Ratanchand Jain, in the layout carved out in land bearing Survey No. 55/2. In the same layout, the respondent/ori. plaintiff purchased plot No. 64 admeasuring about 2000 sq.ft. (50' x 40') from the same lay out. It is contended that Plot No. 64 which was purchased under registered sale deed dated 15.4.1970 by the plaintiff, had boundaries as follows: On East Plot No. 65; on West 30 ft. road; On north Plot No. 25 and on South Plot No. 68. In the identical manner boundaries of Plot No. 68 are stated to be: on East Plot No. 65; on West 30 ft. wide road ; on North Plot No. 64 and on South Road. Both the plots are admittedly admeasuring 50' x 40' with area approximately 2000 sq.ft. The plaintiff had filed suit for possession, damages, and monetary as well as perpetual injunction against the defendant (present appellant) alleging that he had encroached over the plot belonging to the plaintiff and made construction on the plot which, in fact, belonged to the plaintiff. Regular Civil Suit No. 2025/1992 was instituted. The defendant by written statement dated 5.1.1992 denied the averments of the plaintiff and prayed for dismissal of the suit.

(3.) The suit was heard by learned 8th Joint Civil Judge, Junior Division, Nagpur who partly decreed the same. The trial Court found that encroachment was made by defendant on the Plot No. 64 belonging to the plaintiff. It appears that during pendency of the suit, both the learned Counsel representing the parties had agreed for appointment of Shri Ratanchand Jain as Court Commissioner to measure the disputed plots belonging to the plaintiff and defendant. Accordingly, the evidence of the plaintiff was deferred till Shri Ratanchand Jain executed the commission work and filed report at Exh.49 in the trial Court. The Commissioner was cross-examined with reference to Commission's report (Exh.49). The registered sale deed on the basis of which the plaintiff and defendant claimed their title were also on record as Exh. 38 (plaintiff's sale deed) and Exh.62 (defendant's sale deed). The trial Court appears to have admitted the map in respect of the plots produced by the Court Commissioner who was admittedly predecessor-in-title for both the plaintiff as well as defendant. The Commissioner was also allowed to be examined by the parties regarding this report Exh. 49. The trial Court observed that the defendant had agreed for appointment of Shri Ratanchand Jain as Court Commissioner as also the plaintiff and under these circumstances since he was also predecessor-in-title for both the plaintiff as well as defendant in respect of their plots, his evidence was considered vital in the case and the trial Court concluded that the plaintiff has proved that the defendant made encroachment on her plot, despite the fact that she had made wooden fencing surrounding the plot purchased by her. As such, her evidence was believed that the structure constructed by the defendant is on plot No. 64 belonging to the plaintiff. Thus, suit came to be partly decreed, with direction to the defendant to remove the illegal construction and material from Plot No. 64 of Rewatkar Layout as per Schedule appended with the plaint. However, the trial Court had dismissed the claim as to damages although it granted permanent injunction against defendant restraining him from making any illegal construction or creating any lien or charge over the suit Plot No. 64.