GOVINDRAO SHANKARRAO REDDY Vs. RUKMANIBAI VITHAL REDDY

JUDGEMENT

(1.) Heard learned counsel Mr. S. M. Vibhute Advocate, h/f. Mr. V. C. Solshe, Advocate for the appellant. Also heard learned A.G.P. Mr. J. S. Gavhane. The State of Maharashtra or its officers are not party to this second appeal. This matter was listed before this Court for hearing on 6th of August, 2008. That day I heard learned counsel for the appellant wherein the learned counsel for appellant had invited my attention to Exh. 5 i.e. Hissa Form No. 4 (Copy of Gunakar Book). On my query, the learned counsel for appellant informed me on that day that survey manual is not available with the High Court Bar Association, Aurangabad, Bench at Aurangabad. In this premise help of learned A.G.P. Mr. J.S. Gavhane was sought. He was requested to produce on record the format of Hissa Form No. 12, Hissa Form No. 11 and Circular issued by the Settlement Commissioner, Pune on 24th of June, 1940. Hearing of the appeal was adjourned. That is why this second appeal is today listed for admission the learned A.G.P. Mr. J. S. Gavhane has made available circular issued by the Settlement Commissioner on 24th June, 1940 and format of Hissa Form No. 4, Hissa Form No. 11 and Hissa Form No. 12. All these documents are marked by letter Exh. X collectively for the purpose of identification and taken on record. Mr. Gavhane has made available this circular and formats with the assistance of Mr. Balwant Warkad, Shirastedar from the office of T.I.L.R. The learned A.G.P. and Mr. Warkad, Shirastedar from the office of T.I.L.R. are relieved.

(2.) The appellant in this second appeal was original plaintiff in Regular Civil Suit No. 351/1990 and the respondents in this appeal are the defendants in the suit. Parties, hereinafter, are referred to their status as plaintiff and defendants for convenience. The plaintiff had sought declaration that plaintiff is owner of the suit property and it also sought a decree for perpetual injunction against the defendants. This suit, after hearing the parties, came to be dismissed by the trial Court. The judgment and decree passed by the trial Court in Regular Civil Suit No. 351/1990, was challenged by the aggrieved plaintiff. It was Regular Civil Appeal No. 68/2003. This appeal, after hearing the parties, came to be dismissed by the learned Additional District Judge, Nilanga (First Appellate Court). It is this judgment and decree passed by the First Appellate Court is the subject matter of the present second appeal. The Agricultural Land Survey No. 23/1, admeasuring 32 R. situated at village Koyajiwadi, Tal. Nilanga, District Latur is the subject matter of the suit. The parties in Civil Suit are expected to plead material facts in their pleading. The pleading is defined under of Order VI, Rule 1 of Civil Procedure, plaint is pleading of plaintiff and written statement is pleading of defendant. The parties, after pleading the material facts, have to substantiate those material facts by evidence either documentary or oral. While leading oral evidence, parties have to lead evidence in consonance of the pleadings. Evidence besides the pleading cannot be led by the parties in view of the provisions laid down under Order VI, Rule 2 of the Civil Procedure Code. Parties are not permitted to travel beyond the pleadings. Oral evidence, if besides, his pleading lead by the parties, needs to be excluded by the Court while considering and appreciating the evidence of the party in a suit. Thus, the pleading is foundation of the stance taken by the party in civil suit. Such an importance of the pleadings has been laid down by the Supreme Court in the matter of State Bank of India vs. S. N. Goyal, reported in 2008 AIR SCW 4355. Keeping in mind the importance of the pleadings, now I turn to examine the pleading in the case on hand since entire record and proceeding is available before this Court.

(3.) The plaintiff has stated in the plaint that suit is for the declaration of ownership with perpetual injunction regarding the agricultural land bearing Survey No. 23, Hissa No. 1, area to the extent of 0 H. 32 R. Boundaries of this suit property have been given by the plaintiff in para 1. It is pleaded by the plaintiff that husband of defendant No. 1 and father of the plaintiff namely Shankarrao were real brothers along with third brother Vyankat. The father of the plaintiff was residing separately since 1959. Husband of defendant No. 1 died somewhere 1970, leaving behind his widow and two sons i.e. defendants Nos. 2 and 3. In para 2, statement is made that at the time of partition between the father of plaintiff and his two other brothers namely Vithal and Vyankat, suit land was allotted to the share of the plaintiffs father i.e. Shankar. Since 1959 till the date of filing of the suit, plaintiff and his father are in actual possession of the suit land. The partition of 1959 was oral made by the panchas in the year 1959. It was a day of Gudi Padwa. In para No. 3, it is pleaded that suit property is in actual possession of the plaintiff, but the revenue record does not show the name of plaintiff or his father. The plaintiff and defendants were under the wrong impression that suit land i.e. admeasuring 0 H. 32 R, is part and parcel of land bearing Survey No. 22, since said Land Survey No. 22 is owned and possessed by the plaintiff and his family members. It is also pleaded that the defendants have full knowledge about the actual possession of the plaintiffs over the suit land. In para 4, it is stated that at the time of measurement of Sub-Division (Pot Hissa) of Survey No. 23, it was revealed that plaintiff is in actual possession as owner of the Land Survey No. 23 to the extent of 0 H. 32 R. i.e. suit land. This measurement had taken place in the year 1971. Boundaries of this suit land have been given in para 5. In para 6, it is stated that the date of adverse possession of the plaintiff over the suit property started from the date of measurement of the Pot Hissa by concern department and possession of the plaintiff over the suit land is since from the measurement of the Sub-Division (Pot Hissa) in the year 1971. From that date possession of the plaintiff is continuous and hostile to the true owner and this fact is known to the all defendants. On the basis of this adverse possession, plaintiff has acquired ownership of the suit property. It is pleaded in para 6 that on southern side of the suit land there is fencing by shrubs and beyond that, property allotted to the share of defendant is situate. Such fencing exists since about 40 years. Such fencing is east-west in direction. There is old Nala (stream) also. In para 7, it is pleaded that there is cattleshed in the suit land of the plaintiff and he used to keep his agricultural equipment in the said cattleshed. In para No. 8, it has been stated that plaintiff has submitted the copy of Pot Hissa and map of the measurement along with Survey Nos. 22 and 23 of village Koyajiwadi and in para 9, alleged encroachment by the defendants is pleaded. However, Cause of action for filing of the suit, according to the plaintiff, arose on August 5, 1990.