Possession based on title is crucial in a property dispute, and the absence of a plea of adverse possession can impact the application of the Limitation Act.

JUDGMENT

Mangesh S. Patil, J. - This is a second appeal by the original defendant no.1-b from a suit filed by the original plaintiff Kachardas. Respondent Nos.1-a to 1D are his legal representatives. Respondent Nos.2 to 2-E are co-defendants.

2. The second appeal has been admitted by the order dated 29 august 2000 mentioning that Ground nos. (IX) and (X) from the appeal memo would be the substantial questions of law, which read as under :-

''(IX) That, P.W.S. who is Consolidation Officer examined by the plaintiff, he got measured the suit plot on dated 18/08/1990 which is at Exhibit 103/a. He measured the suit plot on the basis of earlier measurement done by the P.W. 4. He stated that, Survey No.121 is towards western side of Survey No.122 and there is boundary mark in between the 2 Survey Numbers. If it is so, then in plaint, this description has not given by the plaintiffs. This witness preferred Exhibit 104 of measurement on the basis of earlier measurement. He admitted that, he has not got measured entire Survey No. 121 and 122. He further admitted that, surrounding CTS No. 2487 to 2490, there were constructed houses. He further admitted that at the time of measurement, he was unable to ascertain the boundary marks, of Survey Number 121 and 122. If it is so then, whether the measurement done by this witnesses is true and correct, and whether really he made a measurement in respect of encroached area?

(X) That, when this witness, P.W. 5 admitted that, after verifying CTS plan and CTS record (Exhibit 104) in which boundaries are shown on that basis he filed a report of measurement, whether this measurement is admissible in the eye of law ?''

3. In view of the clumsy wordings, I have reformulated the substantial questions and have heard the learned advocates of both the sides on following points:-

(I) Whether the lower appellate court has grossly erred in reaching the conclusions on the basis of the report of the Surveyor who measured the properties that the original defendants made encroachment over the plaintiff's property?

(II) Whether after filing of the suit a city survey had taken place and still without there being any amendment in the plaint, the lower appellate court was legally correct in decreeing the suit with reference to the old survey number?

4. The facts as are necessary leading up to the filing of the second appeal are as under :-

(I) The original plaintiff Kachardas averred that he had purchased a portion admeasuring 4 gunthas from the land survey no.121 totally admeasuring 14 Hector 35 are of village Shevgaon, Tq. Shevgaon, Dist.ahmednagar, admeasuring North-South 132 ft. and East-West 33 ft. He then averred that the original defendants entered into possession of a part of the suit property admeasuring South-North 132 ft. and East-West 16.1/2 ft.\ bound by his remaining plot to the East, remaining portion from survey no.121 to the South, Shri Sant Gadge Maharaj Chatralaya to the West and public road to the North. He contended that he had purchased it under the sale deed dated 11 December 1959 and since thereafter he was in exclusive possession of the entire property purchased by him. He averred that about a year and half prior to the filing of the suit the defendants encroached over that portion and erected some construction. He described this 132 ft. by 16.1/2 ft. portion as the suit property and claimed its vacant possession.

(II) The original defendant Bhimashankar, who was the sole defendant and was the predecessor of the appellant and the rest of the respondents, contested the suit by his written statement. He denied about plaintiff having purchased any property from survey no. 121 and he having encroached over the suit property. He denied to have encroached over any property or to have erected illegal construction over the suit property. He also contended that the suit was barred by limitation. Lastly, he contended that the property in his possession was originally purchased by ashru abaji Sapkal who himself ha