IMPORTANT POINT
[The court established that the burden of proof lies on the defendant to substantiate claims of ownership or tenancy, and failure to do so, coupled with admissions against interest, can lead to a judgment in favor of the plaintiff.]

JUDGMENT/ORDER

1. Heard.

2. The present second appeal is filed being aggrieved by the judgment and decree passed by the learned First Appellate Court on 19/07/1987 in Regular Civil Appeal No.131 of 1984 confirming the judgment and decree passed by the learned Trial Court on 20/09/1984 in Regular Civil Suit No.133 of 1981 dismissing the suit. Plaintiff filed suit seeking relief of possession on the strength of title as well as on the ground that the defendant has made encroachment to the extent of 2 gunthas on the land of the former.

3. The facts of the present case are as under: The plaintiff is the owner of the agricultural land bearing survey no. 75/4-A situated at Nandura district Buldhana. The plaintiff had purchased 7 gunthas of land from field Survey No.75/4-A of Nandura, Dist. Buldhana from its previous owner Motisingh Bankatsinha under different sale deeds on 02/07/1974, 29/08/1974, 04/10/1974 and 05/02/1975 and since then, he is in possession of the same as an owner thereof. The case of the plaintiff is that the defendant without any right, title or interest encroached upon a portion of 2 gunthas of the said land (hereinafter referred to as the suit land), in Summer 1976 and constructed a hut thereon. Therefore, the plaintiff issued a notice to him on 02/04/1976 calling upon him to deliver the possession of the suit land, but the defendant gave false reply to the said notice, contending that the acquired the possession of the suit land from its previous owner Motisingh, in pursuance of oral sale free from all encumbrances and has become its owner. However, the plaintiff could not take any legal action against the defendant due to his pre-occupation and as he was cut of Nandura for the purpose of his service. After his return to Nandura, the second notice on 26/11/1980 was also served on the defendant but in vain. Therefore the plaintiff was constrained to file the suit for recovery of possession on the strength of title as well as on the basis that the defendant is in possession as a consequence of encroachment to the extent of 2 gunthas of land, before IInd Joint Civil Judge Jr. Dv. Malkapur. Suit was filed for the recovery of possession or the suit land and damages of the last three years, amounting to Rs.1800.00.

4. The defendant appeared in the said matter and resisted the claim of the plaintiff and submitted that he is in possession of the suit land continuously since 1962 as an owner thereof and he specifically denied the plaintiff's title to it. It is further submitted by the defendant that the sale deed in question are nominal and fabricated and they do not confer any right of ownership upon the plaintiff and therefore the plaintiff is not entitled to recover the possession of the suit land from him and also prayed for the dismissal of the suit.

5. After considering the matter before it, the learned lower court dismissed the plaintiff's suit as he failed to prove his title to the suit land and also failed to prove the encroachment made by the defendant on the suit land. Being aggrieved and dissatisfied by the said judgment the plaintiff preferred Appeal before the learned Additional District Judge Khamgaon. Learned Appellate court also dismiss the appeal on the ground that the plaintiff failed to prove that on which specific portion of the plaintiff's land the alleged encroachment was made by the defendant.

6. The said judgment was challenged before this Court. This court had allowed the appeal by setting aside the judgments and decrees passed by both the courts below and directed the defendant to deliver possession of the land to the plaintiff under encroachment. The respondent filed Civil Appeal No.922/2004 before the Hon'ble Supreme Court. On 06/01/2016, the Hon'ble Apex Court, considering the report of the Commissioner is required, allowed the appeal and remanded the matter back to this Court either to direct the First Appellate Court to pass appropriate order or appoint a Revenue Commissioner for the purpo