1. This is a Second Appeal by unsuccessful plaintiffs, who lost in both Courts below.

2. Heard learned Adv. Mr. A.V. Bhide for the appellants, learned AGP Mr. D.P. Thakre for respondent nos. 1 to 3 and learned Adv. Mr. S.C. Bhalerao for respondent no.4, since notice was issued.

3. After hearing parties, perusal of impugned judgments, pleadings and other record tendered for perusal, this Court finds that appeal deserves admission on certain Substantial Questions of Law.

4. This Court, therefore, frames following Substantial Questions of Law:-

[1] “Is it permissible for any Court to record a finding about encroachment in absence of fact as to encroachment and extent thereof being ascertained on the basis of authentic public record and with regard to authentic boundaries?

[2] Have the parties to suit exerted to prove and disprove respective cases by legal evidence as to fact of encroachment alleged?

[3] If a party to suit proves the act of encroachment, but fails to prove extent thereof by legal evidence, will it be open to the Court to astutely dismiss the suit, or cause proper local enquiry and render a fresh report under Order 26, Rule 9 of Civil Procedure Code, and secure on record report of legal evidence as to fact of matter about encroachment, or otherwise as to the allegation in plaint and fact of encroachment proved by the party to suit?”

5. Considering that the matter would require adjudication only on law and on admitted facts, the defendants were called upon to explain as to what purpose would be served by keeping the appeal pending.

6. Both parties before the Court have agreed for taking the appeal for final disposal immediately. Therefore, by consent of parties, the appeal is heard for final disposal.

Facts

7. The version in the plaint is summarized as follows:-

[a] Plaintiff Nos. 1 and 2, who are respectively son and mother, own land Gat No. 144, admeasuring 1 hectare 29 Are, and had planted 86 teakwood plants in the said land which had matured for harvest.

[b] Plaintiff no.3 owns land Gat No. 143 admeasuring 23 acres and 17 Gunthas, and Gat No. 145/1 admeasuring 1 acre and 31 Are, which is an ancestral property.

[c] Husband of plaintiff no.3 had sold to defendant no.4 2 hectares 33 Are land from South-West corner of Gat No. 145.

[d] In the disguise of measurements and alleging that encroachment was found to have been done by the plaintiffs on the land of defendant no.4, he got the area belonging to the plaintiffs’ land recorded in his name, and based thereon, got cut off and harvested teakwood plants owned by the plaintiffs in their land. [e] Plaintiffs, therefore, filed a suit for removal of encroachment and injunction etc.

8. Defendant No.4 disputed the claim by filing Written Statement, and claimed to be genuinely in possession and ownership of land belonging to him.

Defendant No.4 also filed a Counter-claim seeking relief that the plaintiff nos. 1 and 2 had encroached on land purchased by him, and claimed possession of area of 30 Ares.

9. This Counter-claim was denied by the plaintiffs by filing Written Statement thereto.

10. The Trial Court had framed issues relating to the respective claims of encroachment as follows:-

“1. Does plaintiff prove that measurement done by defendant no.2 of Gat No. 146 dated 27-12-2000 is illegal and unlawful?

2. Does defendant no.4 prove that plaintiffs no. 1 and 2 are having possession upon his land to the extent of 00 hec 30 Are as per measurement?”

[Quoted from Page No. 29 of the Second Appeal paper-book].

11. Plaintiff no.1 offered himself as a plaintiffs’ Witness No.1, and his oral evidence was recorded in which he had asserted/reiterated gist of his claim. To prove plaintiffs’ story of encroachment, Plaintiffs examined as Witness No.2 - Shri Damodhar Sampatrao Mutekar, a Cadesteral Surveyor. The said witness simply tendered the map, which was exhibited and treated as proved.

12. In the cross-examination, the said plaintiffs’ Witness No.2 -Shri Mutekar