The legal right of a person in possession of land and the burden of proof in cases of possession and encroachment.

JUDGMENT

M.S. Jawalkar, J. - The Appellant filed present Appeal being aggrieved by the judgment and decree passed by the learned 2nd Ad-hoc Additional District Judge, Washim in Regular Civil Appeal No. 89/2001 decided on 13/12/2005 arising out of the judgment and decree passed by the learned Civil Judge Senior Division, Washim in Regular Civil Suit No. 141/1997 dated 15/03/2000, whereby the Appeal filed by the Defendants came to be allowed.

2. The brief facts for deciding the present Second Appeal are as under:-

The Appellant herein is the original Plaintiff who had filed the Suit i.e. Regular Civil Suit No. 141/1997 for Permanent Injunction. It is the contention of the Plaintiff that the Suit Property is a room ad-measuring 16 x 20 square feet constructed with stones and mud in which a flour mill is erected in the year 1985 and the said constructed room is the ancestral and old one property of the Plaintiff. The Suit Property is more particularly described in Paragraph 1 of the Plaint. The room is ancestral property of the Plaintiff which is constructed by his ancestors, around 50 years ago and in that room, the Plaintiff erected flour mill in the year 1985. In March, 1997, the Defendants claimed that the Defendants auctioned the Suit Property to one Prakash Chinkuji Kakade. Not only this, on 19/06/1997, the Defendant No. 1, without any right, informed the Defendant No. 2 i.e. Maharashtra State Electricity Board to disconnect the electric supply of the flour mill. Accordingly, the line-man from MSEB came to the flour mill of the Plaintiff on 19/06/1997 for disconnecting the electric supply. However, at the request of the Plaintiff, he returned back. When the Plaintiff made enquiry with the Defendant No. 1, it was contended by the Defendant No. 1 that the construction of the Suit Property is over the Government land. Hence, the Plaintiff should remove the said construction. It is claimed that the said Suit Property is auctioned to Prakash Kakade and if the Plaintiff does not remove the said construction, the Defendant No. 1 would remove the same through Government Machinery. In view of the apprehension that the Defendant No. 2, without any right, would illegally use the Government Machinery to remove the Suit Property, the Plaintiff was constrained to file the Suit. The Plaintiff claimed Permanent Injunction restraining the Defendant No. 1 from removing the Suit Property and further restraining the Defendant No. 2 from disconnecting the electric supply of the Suit Property.

The Defendants filed written statement and resisted the claim on the ground that the said plot was auctioned to Prakash Kakade and therefore the Government has every right to remove the encroachment upon the Suit plot. The Defendant No. 2 - MSEB has also filed written statement and submitted that it has nothing to do with the ownership and the plot in question however, if the encroachment has to be removed, the electricity supply has to be stopped. The Defendant No. 3 - State of Maharashtra was added as a party subsequently. It adopted the written statement filed by the Defendant No. 1.

The learned Trial Court held that the Plaintiff proved that he is the owner of the Suit Property and the encroachment was not at all proved. It is also held by the learned Trial Court that the Defendants, without any right, are illegally trying to dispossess the Plaintiff from the Suit land as well as disconnecting the electric supply and decreed the Suit. State of Maharashtra and Tahsildar filed Regular Civil Appeal No. 89/2001. The Appellate Court allowed the Appeal and set aside the judgment and decree passed in Regular Civil Suit No. 141/1997 dated 15/03/2000 and reversed the finding recorded by the learned Trial Court. The said judgment and decree of the learned Appellate Court is the subject matter of challenge in the present Appeal.

3. Learned Counsel for the Appellant vehemently submitted that the Defendants were claiming that the Suit Property was auctioned to one Prakash