NARAYAN VISHNU JAYGUDE Vs. SAVITRABAI KISAN SALUNKHE

JUDGEMENT

(1.) This appeal by the defendant is directed against the concurrent judgments rendered by the courts below by which a suit instituted by the respondent-plaintiff has been decreed. The suit was for possession of an agricultural land, only to the extent of 1 guntha out of Gat No. 1565, owned by the plaintiff (for short "suit land"). The case set up by the respondent-plaintiff was that in 1978 the appellant-defendant encroached upon the suit land. On 24. 6. 1980 the land was measured by the DILR when the encroachment was revealed, and hence the plaintiff filed the suit in 1981.

(2.) Both the courts below after having considered the evidence on record and in particular the report of DILR and the map drawn by him have answered both the issues in favour of the respondents. The courts below held that the plaintiff proved the encroachment made by the defendant upon the suit property as alleged in paragraph 2 of the plaint and that the defendant has failed to prove that he has become owner of the encroached portion by way of an adverse possession.

(3.) Mr. Gole, learned Counsel for the appellant submitted that the DILR did not follow the procedure contemplated in law while carrying out measurement of the agriculture lands. He submitted that the DILR did not show the marks of the appellant's vahiwat either in the report or in the map submitted by him. He further submitted that the case of adverse possession was not considered by the courts below in proper perspective. Even the issue regarding adverse possession was not framed by the appeal Court. On the other hand Mr. Karlekar, learned Counsel for the respondent submitted that both the courts below after having considered the report of the Surveyor have concurrently held that the defendant has encroached upon the property to the extent of 1 guntha as claimed in paragraph 2 of the plaint. He submitted it is not correct to say that the appeal Court did not consider the case of the appellant that he acquired ownership by adverse possession. He then submitted that the appellant cannot claim ownership by adverse possession since the alleged encroachment was made in 1978, whereas the suit for possession was filed by the respondent in 1981.