The Plaintiff's failure to prove possession and the Defendants' ownership of their respective portions led to the rejection of the Plaintiff's claim of encroachment.

JUDGMENT :

BHARAT P. DESHPANDE, J.

1. Original Plaintiff is challenging concurrent findings of both the Courts below in the present Second Appeal. On 30.11.2010, this appeal was admitted on the following questions of law;

“(i) When both the Courts have held that Shankar has sold 2 hectares 6 ares land to the Plaintiff and when the compromise decree on record shows that the Shankar has received half share i.e. 4 hactares 12 ares land then whether the Plaintiff can be non-suited only on the ground that Plaintiff could not prove that at the time of sale deed he was put in possession of the said land, more particularly, when there is no case of adverse possession by the Defendants?

(ii) Whether the measurement is legal and proper?”

2. In nutshell, Plaintiff filed a suit bearing RCS No. 12/1993 before the Civil Judge, Junior Division, Latur for possession and mesne profits against Defendants/Respondents herein. The prayer clauses in the suit read thus:

(1) That, a decree for possession of the land adm. 9R, from southern side of the suit land which is shown in blue colour in the map and 80R. which is shown in red colour in the map be passed and the Plaintiff be put in khas possession by evicting the Defendants.

(2) A decree for past mesne profits of Rs.5000/- be passed against the Defendants proportionately according to the portion encroached upon by them.

(3) A decree for future mesne profits be passed.

(4) That, the cost of the suit may be awarded to the Plaintiff.

(5) Any other relief to which the Plaintiff is entitled may kindly be granted.

3. Plaintiff’s case is that he purchased a land ad-measuring 2H 6R (from Gat No. 14 of village Pakhar sangvi Tq. Latur) from Shankar s/o Sanpati Yelurkar on 08.05.1991. He was put in possession of the said land on the basis of an agreement dated 20.07.1990 executed between him and Shankar with the boundaries as to the East land of Bhagwat Baban; West land of Defendant No. 2; South land purchased by the Defendant No. 1 out of the land bearing block no. 14 and North land of Dnyanoba Bapurao Shingan (hereinafter called as suit land).

4. The Plaintiff carried out mutation entry in the survey records and started digging well in his land and at that time Defendants obstructed by claiming that said portion is belonging to Defendant No. 1 which she purchased from the earlier owner Shankar and is in possession of it. Plaintiff submitted an application in the office of Tahasildar at Latur through his vendor for measurement. Thereafter Plaintiff found that the Defendant No. 1 made encroachment over a portion admeasuring 93R from the southern side of his land. Subsequently the plaint was amended and thereafter it is a case of Plaintiff that Defendant No. 1 encroached over the portion of land admeasuring 9R from the southern side, whereas Defendant No. 2 encroached to the extent of 80R from the western side.

5. Both the Defendants contested the suit by filing separate written statement. Defendant No. 2 – Nagorao, brother of Shanakar (predecessor in title of the Plaintiff) claimed that the allotment of land to Shankar as claimed in the plaint is incorrect. It is his contention that Shankar initially sold 1H to Balaji and thereafter 1H 5R to Meenabai (Defendant No. 1) and only then remaining land available to the share of Shankar was sold to the Plaintiff, which was not having area of 2H 6R as claimed in the plaint. Therefore, it is specific case of Defendant No. 2 that though sale deed executed in favour of Plaintiff shows an area of land of 2H 6R, actual possession was given to the Plaintiff of less area and not the area shown in the sale deed. Thus, it is the contention of Defendant No. 2 that there was no encroachment. He further submitted that while orally partitioning the property between him and Shankar, more area was allotted to him being less fertile and Shankar was allotted less land, which was more fertile. Therefore there was no equal division of land between Nagorao and Shankar as claimed in the deed of par