DHANSINGH LALSINGH BHOPALE Vs. KAMINIBAI

JUDGEMENT

(1.) THIS Second Appeal arises out of the judgment and decree dated 10. 02. 1987 passed by the Appellate Court i. e. Additional District Judge, in Regular Civil Appeal No. 48/1982, who allowed the appeal and set aside the decree passed by the trial court dismissing the suit. The Appellate Court directed the appellant / defendant to remove the encroachment of 7 Ars. , of the land denoted as A,b,c,d, in red pencil shed at Exh. 33, which was a joint measurement map prepared by the cadastral surveyor, which formed as part of the decree. The Appellate Court also directed that in case the defendants did not remove the encroachment the plaintiffs would be entitled to get the possession of the encroached land by appointing Court Commissioner of the level of Cadastral Surveyor.

(2.) HEARD Shri S. R. Deshpande, the learned Counsel for the defendants and Shri P. P. Kotwal, the learned Counsel for the plaintiffs. I have perused the judgment passed by both the Courts below. The trial Judge was of the view that there was a discrepancy in the joint measurement map regarding the portion which was shown to the extent of 9 Acres being fallow land. The trial Judge held that the plaintiff has failed to establish that the defendants have made encroachment on their land survey no. 25, and consequently he dismissed the suit. The Appellate Court had appointed a cadastral surveyor Shri Udhar, as a Commissioner under Order 26 Rule 9 of C. P. C. , for taking the joint measurement of the respective lands owned by the parties. The Commissioner has submitted his report along with the map Exh. 33, which was considered by the Appellate Court and recorded the finding that the defendants have made encroachment to the extent of 7 Ars of land.

(3.) IT is not disputed that the plaintiff are the owners of the agricultural land survey no. 25 (new block no. 49) admeasuring 21 Acres 12 Gunthas, whereas the defendants are the owners of the agricultural land bearing survey no. 27 (block no. 46) admeasuring 10 Acres 39 Gunthas. The joint measurement map would indicate that the defendant have made encroachment to the extent of 7 Ars. It is settled law that the report of the Commissioner appointed under Order 26 Rule 9 of C. P. C. is admissible in evidence, and therefore it cannot be said that the findings of the Appellate Court was not based on the correct appreciation of facts and law.