SHIOLALSING GANNUSING RAJPUT Vs. SHANKAR MOTIRAM NALE

JUDGEMENT

(1.) This is a second appeal by the appellant-plaintiff aginst the concurrent decisions of both the Courts below dismissing his suit for possession of 33 gunthas area from out of filed Survey No. 59/1, area 3 acres 12 Against decision of D. D. Sutavani Dist. J., Buldana, d/- 16-4-1971. IA/ JA / E 141 /83/ SNV Gunthas, of village Nimbhari in Malkapur taluqa of Buldana district.

(2.) The appellant-plaintiff claimed to have purchased the suit land Survey No. 59/1 , Area 3 acres 12 gunthas, land revenue Rs. 8/- of village Nimbhari from Onkar sakharam Patil his brothers and certain other persons under a registered sale deed Ex. 33 dated 2-1-1961. It was the contention of the appellant-plaintiff that in the months of June 1963 and June 1964 , the respondent who was cultivating the adjointing pot-hissa Survey No. 59/1-A, 3 acres 8 gunthas area, eneroached upon 33 gunthas land from the plaintiff's field Survey No. 59/1 The appellant -plaintiff got the land measured on 24-5-1965 claiming possession of the encroached land. These contentions were denied by the respondent, who alternatively contended that he had become owner of the suit land by adverse possession. The trial Court dismissed the plaintiff had failed to prove his title to the allegedly encroached suit land and this dismissal of the appellant's suit was confirmed by the lower appelate Court.

(3.) It would seem from the oral and documentary evidence on record that originally the whole field survey No. 59 had an area of 6 acres 20 gunthas and was owned by Onkar sakharam Patil, his brothers Trimbak Sakharam Patil, waman Sakharam Patil , Sadashio Sakharam patil, their father Sakharam Sitaram Patil and Bhagirathibai wife of Sakharam Patil. It would thus seem that the whole land Survey No. 59 was owned initially by the appellant's vendor. An attempt was made by the respondent ot prove that under a sale deed dated 234-1936 the original owners of the whole field Survey No. 59 had sold an area of 4 acres out of this field to Gulabsa Mohanasa, from whom that portion of the land appears to have been taken on lease by the respondent and subsequently on 1-4-1961 the respondent claims to have acquired rights of owner ship in that land under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The courts below, have accepted proof of this sale of 4 acres of land and have, therefore come to the conclusion that after the original owners of Survey No. 59 had sold 4acres of land from out of the total area of 6 area of 2 acres 20 gunthas could be said to have remained with the original owners, which alone they could transfer to the appellantplaintiff under the sale deed Ext. 33 dt 2-1-1961. Therefore, the Courts below have come to the conclusion that theappellant-plaintiff had failed to prove his title to 3 acres 12 gunthas land of survey No. 59/1 He could get title to only 2 acrea 20 gunthas land since 4 acres area from the whole field Survey No. 59 having a total area of 6acres 20 gunthas, had already sold by the initial owners to gulabsa. That would be a very correct and sound line of reasoning ,provided the alleged sale of 4 acresland by the initial owners of the Patil's family in favour of Gulabsa could be said to have been established.