The importance of providing clear evidence of ownership and complying with land sale regulations.

1. This appeal is filed by unsuccessful plaintiff in Regular Civil Suit No. 83 of 1995 decided on 19.5.1995 by II Jt Civil Judge, Junior Division, Bhandara and appellant in Regular Civil Appeal No. 101 of 1997 heard and dismissed by the Additional District Judge, Bhandara on 2.9.1998.

2. This Court by order dated 14.1.2005 admitted the second appeal on the following substantial question of law :

“Whether the Courts below were justified in ignoring the Commissioner’s Report along with map on the ground of non-examination of the Commissioner as witness?”

3. The facts briefly are :

The plaintiffs had instituted the suit on the ground that they are owners of Khasra No. 70 at village Pinglai, now known as Shjivaji Ward, Bhandara in Municipal town no. 3. Out of the said land, the plaintiffs sold area of 186 square meters (2000 square feet), viz. 40’ east-west, 50’ north-south bounded by plaintiff’s land on east; 10’ wide road on west; Shri Sathavane’s land on South. The land was sold to defendants under registered sale deed for consideration of Rs. 20,000/- on 1.6.1990. The defendant had constructed house over the plot sold and utilised entire area. However, on or about 15.5.1995 the defendant started construction of wall on eastern side of the land by encroaching upon 11’ x 50’ strip of land owned by plaintiffs on eastern side of the plot sold to defendant. The plaint sketch was annexed showing encroachment by red colour A B C D in map drawn for plaintiffs. The defendant though requested orally to refrain from encroachment remained adamant which made it necessary for the plaintiffs to approach the trial Court with prayer for declaration, possession of encroached portion and injunction against defendant.

4. Defendant denied and disputed contents of the plaint while pleading that the defendant is owner of Gat No. 70/1, PH No. 14 at Pinglai admeasuring 2000 square feet purchased on 1.6.1990 and that he had constructed house after getting No Objection Certificate from Municipal Council, Bhandara and completed construction in March 1995. It was contended that the plaintiffs had sold agricultural land without any layout map and only to harass the defendant after he has constructed house and compound. The defendant also disputed on the ground that the plaintiffs have sold adjoining land on east5ern side of the defendant’s plot to one Mr Kshirsagar and therefore, plaintiffs have no right, title over land claimed. It is, therefore, contended that plaintiffs did not come with clean hands.

5. The trial Court found that the plaintiffs do not own eastern disputed land and that there was no any encroachment upon land owned by plaintiffs and by detailed reasons, the suit was dismissed.

6. In the appeal before the Additional District Judge, it was found that the plaintiffs have failed to prove that they are owners of strip admeasuring 11’ x 15’ open site shown as A B C D, thus the appeal came to be dismissed. It was held that the defendant constructed house over his own plot and though there is open site/strip between the defendant’s plot and Kshirsagar’s plot, the plaintiffs cannot be treated as owner thereof. It was also noted by the 1st Appellate Court that the plaintiffs had sold plot without sanctioned layout and without N.A. Permission from the competent authority (Collector). Hence, trial Court’s judgment was found legal and correct.

7. Learned counsel for the appellants argued that the plaintiffs have applied for appointment of Court Commissioner and an Advocate was appointed to work as Court Commissioner to measure land and to draw sketch map and the report was submitted at exhibit 23 to which the defendant had no objection to refer in the evidence by the plaintiffs. Learned counsel for the appellants criticized that the Commissioner’s report ought to have been accepted as evidence of contents thereof without examination of the Court Commissioner as a witness. The report was held not so much clear and trustworthy in the ab