KIRPASHANKAR MUKUNDLAL SAHU Vs. TILAKRAJ KHUSHALCHANDRA WADHAWAN

JUDGEMENT

(1.) This appeal is filed by unsuccessful plaintiff in Regular Civil Suit No. 83 of 1995 decided on 19.5.1995 by II Jt Civil Judge, Junior Division, Bhandara and appellant in Regular Civil Appeal No. 101 of 1997 heard and dismissed by the Additional District Judge, Bhandara on 2.9.1998.

(2.) This Court by order dated 14.1.2005 admitted the second appeal on the following substantial question of law : ''Whether the Courts below were justified in ignoring the Commissioner's Report along with map on the ground of non-examination of the Commissioner as witness ''

(3.) The facts briefly are : The plaintiffs had instituted the suit on the ground that they are owners of Khasra No. 70 at village Pinglai, now known as Shjivaji Ward, Bhandara in Municipal town no. 3. Out of the said land, the plaintiffs sold area of 186 square meters (2000 square feet), viz. 40' east-west, 50' north-south bounded by plaintiff's land on east; 10' wide road on west; Shri Sathavane's land on South. The land was sold to defendants under registered sale deed for consideration of Rs. 20,000/- on 1.6.1990. The defendant had constructed house over the plot sold and utilised entire area. However, on or about 15.5.1995 the defendant started construction of wall on eastern side of the land by encroaching upon 11' x 50' strip of land owned by plaintiffs on eastern side of the plot sold to defendant. The plaint sketch was annexed showing encroachment by red colour A B C D in map drawn for plaintiffs. The defendant though requested orally to refrain from encroachment remained adamant which made it necessary for the plaintiffs to approach the trial Court with prayer for declaration, possession of encroached portion and injunction against defendant.