FAKIRCHAND KISANJI PAONIKAR Vs. RAJARAM NARAYAN TANPILLEWAR

JUDGEMENT

(1.) The appeal is by original defendant challenging the reversing judgment delivered by the 10th Additional District Judge, Nagpur, on 30.12.1991. The present respondent filed Regular Civil Suit No. 937 of 1979 for removal of encroachment, for possession of portion shown in plaint map by red colour by letters F E G H. The suit came to be dismissed by 13th Joint Civil Judge, Junior Division, Nagpur, on 19.07.1985. The respondent plaintiff filed Regular Civil Appeal No. 84 of 1987 which came to be allowed. This Court has on 15.2.1993 admitted Second Appeal and granted interim stay. The appeal has been admitted on the following questions as substantial questions of law :

(2.) The case of plaintiff is that he purchased part of House No. 840 on 17.12.1960 from present appellant . defendant. In the month of August 1978, the appellant committed encroachment by erecting a bamboo fencing afresh in the eastern court yard of respondent . plaintiff's house. He got the measurement and found that the encroachment was to the tune of 380 sq. ft. i.e. 13.9 East West x 27.8 North South. He served notice and thereafter filed Civil Suit. The encroachment was denied by the defendant who gave previous history in relation to said property and pointed out that he purchased portion shown by letters A, B, C, D, admeasuring East West 25 hands and South North 18 hands and then sold part of it to the respondent . plaintiff. He pointed out that description of portion sold is given in para 11 of the sale deed. He contended that suit alleging encroachment was liable to be dismissed.

(3.) The trial Court found that the plaintiff before it could not prove that he was owner in possession of portion shown by letters E F G H alleged to have been encroached and he also could not prove that encroachment was in the year 1978. The appellate Court, however, considered all previous sale deeds on record martialled the position emerging from them and in view of that it found that the encroachment was being shown as plaintiff measured East-West breadth or width of his plot from line BC shown in Exh. 53. It further found that present appellant (original defendant) was measuring the width of portion of plaintiff from lane situated further on eastern side beyond line BC. After considering various sale deeds, it found that the plaintiff already had his old house beyond line BC in Exh. 53 and lane on which the appellant was giving emphasis was on the eastern side of this old house of plaintiff. It found that this old house did not form subject matter of sale deed Exh. 42 between parties. In view of this, it found that the stand of plaintiff that width of his plot was to be measured from line BC shown on eastern side in Exh. 53 was correct and thus there was encroachment.