INDIRA CHHABILDAS JADHAV Vs. VASARAM DHUMA VANJARI

JUDGEMENT

(1.) Present appeal has been filed by the original plaintiff challenging the concurrent Judgment and decree passed in Regular Civil Appeal No.05 of 2009 by learned District Judge -1, Amalner, dated 26-10-2015, thereby dismissing her appeal and confirming the dismissal of her suit for removal of encroachment and possession bearing Special Civil Suit No.47 of 2007 by learned Civil Judge, Senior Division, Amalner, dated 22-01-2009.

(2.) The present appellant - original plaintiff had come with a case that, she is the owner of Gut No.65/2B/1 admeasuring 1 H 52 R situated at village Sarbete Bk. Tq. Amalner Dist. Jalgaon which has been more particularly described in para No.1 of the plaint. Defendant is the owner of southern part of the land in the same gut number, it is then numbered as Gut No.65/1 admeasuring 59 R out of area admeausring 1 H 80 R land. It was more particularly described in para No.2 of the plaint. Plaintiff had purchased the said land from one Devidas Kalu Vanjari, Sanjay Kalu Vanjari and Chababai Kalu Vanjari by registered sale deed dated 30-04-2007. Since the date of purchase, plaintiff possesses the land and enjoys it as owner thereof. It is stated that, there is a common bandh in between the two lands of plaintiff and defendant. It is stated that, the defendant illegally encroached upon the suit land somewhere in the month of May 2004 by demolishing East-West common bandh. According to her the encroachment is to the extent of 19 R. She had applied for measurement on 04-05-2007, accordingly the Cadastral Surveyor had measured it in June 2007. Thereafter, she had requested the defendant to hand over the encroached portion, however the defendant refused, and therefore, the suit has been filed for possession as well as damages to the extent of Rs.1,00,000/-.

(3.) The defendant has filed his written statement and denied the allegations regarding encroachment. It is his say that, original land Gut No.65 was owned by one Mahitap Khadku Vanjari and Isarsing Khadku. It was admeasuring 7 H 63 R + 1 H 83 R as Pot Kharab (non-cultivable area). Kalu Vanjari purchased Southern portion of the land admeasuring 2 H 42 R and then Mahitap, Isarsing and Kalu had divided the said Gut No.65 as per their convenience. North portion Gut No.65/1 admeausring 1 H 80 R went to Mahitap, North portion Gut No.65/2 A admeasuring 3 H 41 R + 1 H 83 R went to Isarsing Khadku Vanjari and Gut No.65/2 B admeasuring 2 H 42 R went to Kalu Kaniram Vanjari, accordingly the mutation had taken place. He had purchased in all area admeasuring 1 H 4 R from Gut No.65/2 A and part of 65/1 from Mahitap and Isarsing by a registered sale deed dated 13-04-1992. He is possessing the said portion as owner thereof since 1992. According to him 45 R land out of the said land Gut No.65/2 A was merged in land Gut No.65/1 without making any sub division, and therefore, plaintiff has misconception that the defendant is possessing excess land. According to him 1 H 21 R land running East-West is still belonging to Wakhabai Khimraj, 60 R land belongs to one Luka Pita and 30 R land belongs to Vithal Kalu. Further 1 H 80 R belongs to one Mandabai Vasraj and 45 R belongs to one Nirmalabai Punamchand. 1 H 64 R land belongs to one Sahebrao Uttam Mistri. It is contended that, no measurement had taken place on the request of the plaintiff showing that he has made encroachment over the land belonging to the plaintiff.