SAHEBRAO S O SAMPATRAO Vs. ASHRU SURYABHAN SAWADATKAR

JUDGEMENT

(1.) HEARD Shri C. S. Dhabe, Advocate for appellant and Shri R. L. Khapre, Advocate for respondents. For the sake of convenience the appellant is referred as plaintiff and the respondents are referred as defendants.

(2.) THE plaintiff filed suit, which was registered as Regular Civil Suit No. 251/1982 before the Civil Judge, Junior Division, Mehkar, for possession and permanent injunction against the defendants in respect of the suit site. The plaintiff's contentions were that he is the owner of the suit site admeasuring 9 cubit feet East-West and 4 cubit feet North South which is described by letters A, B, E, F, A in the Commissioner's map who was appointed to inspect the suit site and draw the map. One Balaji was the erstwhile owner of the total site from whom the part thereof was purchased by the original defendant and remaining part was purchased by the plaintiff. The sale deed of the plaintiff was dated 23. 4. 1958. Whereas, the sale deed of the defendant was dated 10. 5. 1954. Both the sale deeds were registered sale deeds. It is the case of the plaintiff that he had purchased the site from that Balaji along with the site A B E F A shown in the Map of the Commissioner. The defendant's contention was that the site A B E F A was not sold to the plaintiff inasmuch as the same was sold to him prior to the sale deed of the plaintiff. The map would show that the disputed site is situated on the northern side of the plots of the plaintiff and the defendant. Plaintiff's site is on the eastern side and defendant's site is on the western side with a boundary in between. Thus, the plaintiff's site is alleged to be inverted 'l' shape. According to the plaintiff he is the owner of the suit site which is admeasuring 9 c. east-west and 4 c. north-south. He was using the same for carrying his cattle, water and to approach the main government road which is situated on the western side. The plaintiff contended that the suit site was being used by his predecessor in title, even prior to his sale deed i. e. of 1958 for more than 50 years and after its sale; the plaintiff is using the same. However, in the year 1979 defendant opened a door in the wall which was on the northern side and thereby started using the suit site. He also kept one bath stone for bath purpose in the said lane, so also one earthen jar. Thus he has encroached on the said site and disturbed the possession of the plaintiff. As such plaintiff approached the court for grant of possession and perpetual injunction to restrain him from using suit site.

(3.) DEFENDANTS resisted the suit by filing written statement. He denied the ownership of the plaintiff over the suit site. He contended that the disputed site was sold to the original defendant prior to the sale deed of the plaintiff and the plaintiff was not having any right to carry his cattle or use the said site for any purpose. He denied all the material contentions raised by plaintiff. He claimed that the defendant had one opening and windows towards this site since beginning. As his sale deed is prior to sale deed of the plaintiff and he had purchased the suit site including his house site, from the same predecessor in title Bala Saraf, the said Bala Saraf had no legal title to sell the suit site to the plaintiff. He, in alternative contended that he has become owner of the said site by way of adverse possession and that he has also acquired easmentry right over the suit site.