GUNDERAO SAMBHAJI KAKDE Vs. RAMCHANDRA SADASHIO KAKDE

JUDGEMENT

(1.) By these appeals filed under section 100 of Code of Civil Procedure, the original plaintiff has challenged the reversing judgment delivered by the lower Appellate Court. The facts are not much in dispute. The appellant / plaintiff had filed two suits i.e. Civil Suit Nos. 91/1981 and 92/1981 against two real brothers namely Bapurao and Ramchandra for removal of encroachment. Parties to the suit are related to each other and land survey no. 62 which belonged to the family was upon partition divided into three numbers i.e. 62/2, 62/3 and 62/5. Field Survey No. 62/2 admeasuring 2.29 hectors fell to the share of the present appellant / plaintiff, while field survey no. 62/3 and 62/5 ad-measuring 1.74 hectors and 1.34 hectors came in possession of the respective defendants Bapurao and Ramchandra. It is the case of the appellant that he had planted some Karvanda (citrus fruit), towards Dhura and as he was prohibited by Bapurao and Ramchandra from plucking the fruits, he carried out measurement and found that there was encroachment done by both the brothers in his field. Accordingly he filed two suits for possession, damages and for permanent injunction. The obstruction was in the year 1980 and measurement was carried out on 19.2.1981. The measurement revealed encroachment of 0.25 hectors by Bapurao and 0.40 hectors by Ramchandra. The defence of Bapurao and Ramchandra was that of denial. Trial Court decreed both the suits. Lower Appellate Court found that the alleged partition in which survey no.62 was divided between family members was very old i.e. more than 60 to 62 years old and there was no proof of any encroachment. This Court has thereafter admitted the Second Appeals on 5.7.1993, by mentioning that it is being admitted on the points mentioned in the memo of appeal.

(2.) I have heard Shri C.S. Kaptan, Advocate for appellant on 16.04.2008 and thereafter on 17.4.2008. No body has appeared for respondent on both these dates.

(3.) Perusal of the judgment delivered by the Lower Appellate Court reveals that the present appellant could not show that he was in possession of 2.29 hectors of land constituting field survey no.62/2. The measurement was carried out on the basis of 7/12 extract and the Lower appellate Court has in paragraph nos. 10 and 11 considered the evidence adduced in this respect. It found that before said measurement in the year 1980 there was no previous measurement and suit lands were partitioned as per dhuras already in existence. It found that there were certain permanent marks like pandhan or chanda, but measurer did not take into account these marks and he depended upon two wells for the purpose of his exercise. The lower appellate court found that one of the Well was constructed recently. It further found that measurer accepted that old dhuras were in existence since long and there are big trees on it. It found that Dhuras were not either removed or altered in any way. In view of this evidence on record, the lower appellate court found that there was no evidence of any encroachment in the year 1980 or thereabout. It found that old boundary marks were existing on the spot and possession of the parties was in accordance with those boundary marks and hence plea of loss of possession taken by plaintiff was not substantiated.