PRAKASH VASUDEV PATKAR Vs. BHARAT DASHRATH PEDNEKAR

JUDGEMENT

(1.) The appellant has filed the present Second Appeal, thereby challenging the judgment dtd. 22/4/2022 passed by the learned District Judge-1, Oras, in Regular Civil Appeal No.73 of 2015 and the judgment and decree dtd. 25/3/2015 passed by the learned Civil Judge, Junior Division, Malvan, in Regular Civil Suit No.24 of 1997, whereby the suit filed by the plaintiff for permanent and mandatory injunction for removal of encroachment came to be decreed.

(2.) The learned counsel for the appellant submits that both the learned Courts below have failed to take into consideration that the plaintiff has failed to give a proper description of his one-third share by furnishing the four boundaries and has also failed to annex the sketch of the alleged encroached portion as contemplated under Order VII Rule 3 of the Code of Civil Procedure.

(3.) It is further submitted that the alleged encroachment is more than 50 years old and, therefore, the suit for recovery of possession and mandatory injunction was barred by limitation. The suit came to be instituted on 5/4/1997 and after a lapse of about 12 years, the amendment seeking recovery of possession was allowed by the Appellate Court on 28/6/2013. It is, therefore, submitted that the amendment itself was barred by limitation. The plaintiff was fully aware of the old construction of the Padvi and, therefore, the suit is hit by the principles of estoppel, laches and acquiescence. It is further submitted that the plaintiff has failed to establish the alleged encroachment. The Court Commissioner appointed by the Appellate Court exceeded the scope of the order by also measuring Hissa Nos.15, 17, 19, 21 and 22, though he was directed only to conduct a joint measurement of Survey No.45, Hissa Nos.19 and 21. It is also contended that the measurement is inaccurate; the house of the defendant is not shown in the map; Exhibit-117 has not been proved in accordance with law; and that the defendant had merely repaired the Padvi after obtaining due permission from the Gram Panchayat. It is further submitted that the learned Trial Court did not frame any issue regarding possession or limitation. Hence, according to the appellant, the learned First Appellate Court ought to have allowed the appeal.