RAMCHANDRA JYOTI JADHAV KAIKADI Vs. GAJENDRA NANA GUND

JUDGEMENT

(1.) The present Second Appeal has been filed against the judgment and order of the additional District Judge, Solapur in Civil Appeal No. 438 of 1986 which confirms the decree passed by the trial Court in R.C.S. No. 23 of 1979.

(2.) The plaintiff who expired during the pendency of the appeal is represented by his legal heirs, the respondents herein. He purchased 18 acres 30 gunthas from land bearing Survey No. 442/2 under a registered sale deed dated 21.1.1952. He purchased this land from the sons of one Tatya. According to the plaintiff, the sale deed was in respect of 18 acres 30 gunthas. At the time of consolidation of land bearing Survey No. 442/2 in block No. 1972, the total area shown was 12 acres 28 gunthas. The plaintiff claimed that the defendant took undue advantage of the wrong entry made at the time of consolidation of the lands in block No. 1792 and interfered with the plaintiff's possession of 18 acres 30 gunthas. The plaintiff claimed that the defendant had encroached upon his land and therefore filed a suit for perpetual injunction.

(3.) The defendant contended in his written statement that the land bearing Survey No. 442 admeasuring 38 acres 6 gunthas was originally owned by his father Jyoti who bequeathed the entire land to him alone as his brother Tatya was a wastrel. The defendant claimed that on the insistence of the elders of the family, he gave 12 acres 26 gunthas out of this land to Tatya. Thereafter the land in possession of Tatya was allotted survey No. 442/2 and the remaining land which according to the defendant admeasured 25 acres 20 gunthas was allotted a survey No. 442/1. The defendant therefore contended that since the plaintiff had purchased the land from the sons of Tatya he could only be entitled to 12 acres 26 gunthas. The defendant also contended that on the land being measured it was found that the plaintiff had in fact encroached on the defendant's land to the extent of 6 acres 4 gunthas. He therefore, filed a counter claim for recovery of the possession of this area admeasuring 6 acres 4 gunthas.