The judgment emphasizes the importance of proving the validity and authenticity of mutation entries, the burden of proof regarding partition deeds, and the rebuttal of presumptions based on revenue records.

JUDGMENT :

1. The plaintiff has impugned the judgments and decrees of dismissal of his suit passed by the learned 2nd Joint Civil Judge Junior Division, Osmanabad in Regular Civil Suit No.438 of 1983, dated 03.05.1985 and by the learned Additional District Judge, Osmanabad in Regular Civil Appeal No.208 of 1985, dated 13.03.1995.

2. For the sake of convenience, the appellant will be referred to as 'plaintiff' and respondent as the 'defendant'.

3. The brief facts giving rise to the suit between two real brothers were that the plaintiff and the defendant were four brothers, including two stepbrothers. After the death of their father, one stepbrother and the defendant were managing their huge landed properties.

4. The Plaintiff had a case that the defendant in 1969 had allotted him a separate share. The mutation was recorded in his name. The defendant himself had moved the application for mutation. He exclusively possessed Survey No.27, measuring 1 Acre and 4 gunthas and Survey No.28/A, measuring 1 Acre and 27 gunthas, along with other properties from 1967-68. In 1973, the Scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act was implemented in their village. In the said consolidation, his lands Survey Nos.27 and 28-A were consolidated and numbered as Gut No.79 (Ex.44). The fields that came to the share of the defendant were also consolidated, and Gut No.78 was given to his consolidated fields. Gut No.78 was towards the East of Gut No.79. Gradually, the defendant in 1979-80 started encroaching upon his Gut No.79. He requested the defendant not to do such illegal acts, but they continued to encroach upon his land. Lastly, he got his land measured through the Cadastral surveyor and found that the defendant had encroached over 40 Are of land from Gut No.79. Hence, he filed a suit for removal of encroachment, possession and mesne profits.

5. The defendant denied the encroachment. He had a case that in 1959 all brothers had an oral partition and it was effected vide Mutation Entry No.106. The plaintiff never got Survey No.27/B to his share. There was no partition in 1967-68. There was only one partition in 1959. He denied that Gut No.79 was consolidated with Survey No.27/B. He had impugned the Consolidation Proceedings, but the Additional Collector rejected his appeal. During the pendency of the suit, his revision was pending before the Divisional Commissioner. He also pleaded that he had a partition with his sons and his son Ashok is possessing Survey No.27/B. He also assailed the legality and validity of the measurement done by the Cadastral surveyor, specifically on the ground that the notice of measurement was not served on him personally.

6. Appreciating the evidence, the learned Court of first instance decreed the suit. However, the First Appellate Court reversed the judgment and decree of the Court of the first instance.

7. On 03.08.1995, this Court admitted the appeal and passed the following order ;

“There involves substantial questions of law as set out in grounds No. 6 to 9.

Admit. Notice.”

8. The grounds Nos.6 to 9 from the appeal memo are reproduced thus;

6. That the substantial question of law in the present case is as to whether there is a presumption of ownership in favour of the Appellant when his name recorded as the owner right from 1968 in R.O.R.

7. The substantial question of law is as to who was overcome and disprove presumption of the correctness of the Revenue Record.

8. That admittedly the land in question is a part of Gat No.79 and it stands in the name of the Appellant as per the record of Consolidation. The Respondent further admitted that the lands owned by him were formed into Gat No.78. He did not lay any claim to any portion of Gant No.79. The substantial question of law, therefore, is as to whether the findings recorded by the trial court could be reversed on an erroneous assumption that the Appellant withheld the alleged deed of partition referred to in the mutation entry no. 334 ma