IMPORTANT POINT
Without decision on the relevant aspect which goes to the root of the dispute, the impugned judgment in our assessment, fails the scrutiny of law.

JUDGMENT :

Hrishikesh Roy, J.

1. Heard Mr. S. Niranjan Reddy, learned senior counsel for the appellant. The respondents (defendants) are represented by Mr. V.K. Shukla, learned senior counsel.

2. Leave granted. The appellant now (represented by his daughter) filed the Civil Suit No.332/2003 alleging encroachment by the two defendants namely Ramdwar Mahavir Pande and Sudamadevi Pande. The plaintiff’s contention in the Suit was that on 28.12.1995, he had purchased land (measuring 1 Hectre 62 Acres) from Survey No.25 within the municipal limits of Amravati, for consideration of Rs.2,10,000/. The sale deed (Exhibit 47) was executed through the plaintiff’s registered Power of Attorney holder and it was specified therein that a portion of the purchased land is encroached by Radhwar Pande and Sudamadevi Pande. According to the plaintiff, he measured his land on 23.11.2002 and learnt that the defendant no.1 had committed encroachment to the extent of 35 R from the Southern side while the defendant no.2 (related to the defendant no.1), had encroached about 3 R land from the same Southern side of his land. Both defendants were asked to remove their encroachment by the plaintiff and his daughter but the defendants did not budge. Accordingly, the Suit came to be filed for declaration, injunction and possession.

3. In the written statement, the defendant no.1 claimed title over his occupied area on the basis of sale deed dated 17.04.1969 (Exbt. 66) executed by one Vitthalrao Nanwatkar. Likewise, the defendant no.2 claimed title over her occupied area, on the strength of the sale deed dated 02.11.1977(Art.A), executed by one Shantabai Jaiswal. The defendants additionally contended that, M/s Edulji Dotimal Ginning and Pressing Factory Ltd. earlier filed the Civil Suit No.413 of 1979 against the defendant no.1 Ramdwar Mahavir Pande for removal of alleged encroachment to the extent of 7798 square feet. But the said Suit by M/s Edulji Dotimal was dismissed and the defendants continued in uninterrupted possession.

4. The Trial Court on the basis of the evidence and the pleadings, dismissed the suit on 1.9.2008 with the finding that plaintiff has failed to prove that the defendants have encroached on his land and accordingly relief was denied to the plaintiff. The basis for the verdict favouring the defendants was because at the time of purchase, the plaintiff was having knowledge that some portions of the purchased land were in possession of two defendants since 1969. The learned trial Judge noted in the judgment that the plaintiff failed to annexe any sketch map indicating the projected encroachment by the defendants. On relief being refused, the plaintiff filed the Civil Appeal No.199 of 2008 but the learned Appellate Court endorsed the Trial Court’s decree, favouring the defendants. The Court noted that the defendants are residing and are possessing the disputed area, with the permission of predecessor in title of the plaintiff and therefore, they cannot be categorized as encroachers.

5. The above lead to the Second Appeal No.297 of 2013 by the plaintiff. The High Court in the said proceedings felt the necessity to appoint a surveyor to measure the suit property, as described in the respective sale deeds relied by the contesting litigants. By order dated 7.6.2016, High Court has called for a finding through Trial Court, on the allegation of Encroachment made by the defendants, after carrying out measurement on the basis of sale deeds (Exhibits 47,66), whereafter one Amol Giri was appointed as the Surveyor/Court Commissioner for joint measurement of the suit property. The Court Commissioner visited the site on 28.11.2016 in Survey no. 25/4 in Village Mhasala and prepared the measurement map (Exhibit 131), in presence of the parties. The surveyor was examined before the Court on 5.7.2017 and on his cross-examination, the following was elicited:

“….It is correct to say that, according to the map, remaining 38 Are land is in possession of Sudamadevi. 1