IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.97 OF 2013

WITH

CIVIL APPLICATION NO.1157 OF 2013

IN SA/97/2013

LALITADAS AMBADAS DOIPHODE

VERSUS

VIJAY CHAGAN THAKARE

...

Advocate for Appellant : Mr. V. C. Solshe

Advocate for Respondent : Mr. D. P. Deshpande

…

CORAM : SMT.VIBHA KANKANWADI, J.

DATE : 22-10-2021

ORAL ORDER :

1.

The present appeal has been filed by the original plaintiff

challenging the perverse findings. Appellant/original plaintiff had filed

Regular Civil Suit No.29 of 2002 before Joint Civil Judge, Junior

Division, Tuljapur for possession and mesne profits. It was the

contention of the original plaintiff that the defendants have encroached

to the extent of 7.49 square meter of City Survey No.1448. The

respondent/ original defendant denied it and it was his contention that

plaintiff in collusion with measurement officer has shown the

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encroachment. The notice of measurement was not served upon

him and measurement has done behind his back and prior to the

filing of the suit.

2.

Parties have led evidence, especially the plaintiff, who had got

the land measured prior to the suit, examined Cadestral Surveyor

PW 1 Dnyandeo Sarje. The learned Trial Judge believed the evidence

adduced by the plaintiff and it has been held that the plaintiff has

proved the encroachment at the hands of defendant. The suit came

to be decreed on 06-08-2007.

3.

Defendant filed Regular Civil Appeal No.202 of 2007, it was

allowed by learned Principal District Judge, Osmanabad, on 25-06-

2012 and set aside the Judgment given by Civil Judge, Junior

Division, Tuljapur. Hence, present second appeal.

4.

Heard leaned Advocate Mr. V. C. Solshe for appellant and

learned Advocate Mr. D. P. Deshpande for respondent.

5.

Learned Advocate Mr. V. C. Solshe appearing for the appellant

submitted that the approach of the learned Principal District Judge in

deciding the first appeal was perverse. He had not framed proper

points for determination as required under Order 41 Rule 31 of the

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CPC. In fact, he did not consider the prayer to have joint

measurement though it was made by the respondent. In fact, the

defendant had not raised in ground challenging the measurement in

the appeal memo but before the lower Court it was so contended

that the measurement was not proper. The surveyor in his

measurement had clearly stated that the vacant suit strip of 7.49

square meters is part and parcel of Survey No.1411/1 which belongs

to the plaintiff/appellant. If at all the First Appellate Court was not

agreeing with the suit measurement, he could have ordered joint

measurement. The appellant/plaintiff had contended that the

defendant is in possession of the suit strip which was part and parcel

of the ownership of the plaintiff and the defendant had not

contended that he has become the owner by adverse possession.

Under such circumstances, by taking a reverse the suit ought not to

have been dismissed. He, therefore, submitted that substantial

questions of law are arising in this case.

6.

Per contra, the learned Advocate appearing for the

respondent/defendant supported the reasons given by the First

Appellate court and submitted that it has been rightly considered

that the plaintiff has admitted that the defendant uses the lane i.e.

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the disputed portion. The evidence of the Cadastral Surveyor was

not believable at all. The suit was rightly dismissed and, therefore,

no substantial question of law is arising in this case.

7.

At the outset, the basic principles required to be considered

here that the First Appellate Court should have mandatorily frame

the points for determination as contemplated under Order 41 Rule

31 of the CPC. It also appears that the learned First Appellate Court

has not written the Judgment as contempla