RAMCHANDRABHIKAJI JAGTAP Vs. DUDHARAM LANGRUJI PADVEKAR DEAD

JUDGEMENT

(1.) THIS second appeal arises out of the judgment and decree dated 25. 3. 1988 passed by the appellate Court in Reg. Civil Appeal No. 168 of 1983 dismissing the appeal as well as the cross-objections and confirming the judgment and decree passed by the trial Court on 31-10-1983 in Reg. Civil Suit No. 312 of 1979, by which the trial Court allowed the suit of the plaintiff for possession partly and directed the original defendant/appellant to deliver the vacant possession of plot No. 94/1 as shown by letters K, Kh, G, Gh, ch, chh, Dh, D, Te, K in the map Ex. 84 with costs.

(2.) BRIEF facts are as under ; The property bearing plot Nos. 93 and 94 situated in Ward No. 3 at Jatpura, Block No. 60 recorded in the revenue records originally belonged to two brothers Lahu Walke and Bhiwa Walke. Parwati is the widow of Lahu and Wanmala is his daughter. Sumitra is the daughter of Bhiwa. Plot No. 94 was shown as one unit but in the revenue map of the said plot, two sub divisions, such as Plot No. 94/1 and 94/2 were shown, but it is not known as to how these subdivisions were made in the revenue map. The widow Parwatabai and daughter Wanmala of Lahu as well as Sumitra, daughter of Bhiwa, sold plot Nos. 93 and 94 for a consideration of Rs. 4,000/- to the original plaintiff by virtue of the registered sale-deed dated 18-10-1978, As the original plaintiff died during the pendency of this appeal, his legal heirs have been brought on record. Plots No. 93 and 94 are situated towards the southern side of plot No. 73 owned by the defendant. The area of plot No. 93 is 195 sq. ft. whereas the total area of plot No. 94 is 1073 sq. ft. Plot No. 94 was divided into two parts. Plot No. 94/1 is admeasuring 825 sq. ft. whereas plot No. 94/2 is admeasuring 248 sq. ft. It is contended by the plaintiff that the defendant has made encroachment on his plot No. 94 to the extent of 66. 9 sq. ft. as shown in the map annexed with the plan. It is further contended that the defendant during the pendency of the suit is said to have made encroachment to the extent of 526 sq. ft. by constructing a shed and by using the open space of Plot Nos. 94/1 and 94/2 as shown in the map (Ex. 84 ). The defendant was, therefore, called upon to deliver the possession and notice dated 30-7-1979 was served on him, but in vain. Therefore, the plaintiff was constrained to file a suit for possession of the area under encroachment to the extent of 66. 9 sq. ft. and 526 sq. ft. , as stated above.

(3.) THE defendant combated the claim of the plaintiff by filing written statement and contended that Bhiwa had sold the plot No. 94/2 admeasuring 280 sq. ft. to his father by virtue of registered sale-deed dated 25-7-1942 and the defendant is the owner of this much area. It is further contended that the father of the defendant was in possession and after his death his sons were in possession of the area admeasuring 376 sq. ft. out of Plot No. 94/1 since the year 1942 and, therefore, the defendant has perfected his title by adverse possession.