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902-SA-614-2021

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 614 OF 2021

WITH CA/13466/2021 IN SA/614/2021

MOHD AHMED BASIT MOHD AHMAD GANI

VERSUS

ANANDRAO MANIKRAO PAWAR AND OTHERS

…

Advocate for Appellant : Mr. J.H. Deshmukh

Advocate for Respondent Nos.1 to 3 : Mr. Satyajit Bora

Advocate for Respondent No.4 : Mr. G.L. Deshpande

….

CORAM : RAJESH S. PATIL, J.

DATE : 15^th December, 2022

PER COURT :

1.

This Second Appeal is fled by original defendant against the

concurrent fndings of both the lower Courts below.

2.

Respondents/original plaintifs fled a suit against the

defendant/appellant herein for a relief of removal of encroachment

and possession with consequential reliefs of perpetual injunction.

The plaintifs stated that, they are the owners of the suit land

pursuant to registered sale-deed dated 29^th October, 1987.

Pursuant to which his name was recorded in revenue record i.e.

land survey No. 542, admeasuring 24R situated at village Balapur,

Tq. Dharmabad, Dist. Nanded. It was the plaintifss case that,

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902-SA-614-2021

defendant encroached over 4R land in survey No.542. Therefore,

on 18^th November, 2007, plaintifs measured the land survey

No.542, through Taluka Inspector of Land Records (hereinafter

referred to as “T.I.L.R.”), Dharmabad. As per the said measurement

map, it was found that, defendant had encroached over 4R land in

survey No.542. The plaintifs also examined the cadestral surveyor

and, they have specifcally deposed that, they have issued notices

to the adjacent land owners of land survey No.542 and carried out

the measurement and more particularly issued notice to the

defendant. At the time of measurement defendant was present.

After such measurement it was found that, defendant had

encroached over the land survey No.542 to the extent of 4R.

3.

The defendant (appellant herein) has raised defence that, he

had measured his land through T.I.L.R., Biloli on 2^nd April, 2002, and

as per the said measurement there is no encroachment over land

survey No.542. As per the defendant, he is owner of land survey

No.610/1, which according to him is divided in two parts i.e.

Dharmabad to Balapur Road. According to him small piece of 4R

land is adjacent to land survey No.542. Hence, according to

defendant, he has not made any encroachment over land survey

No.542 to the extent of 4R. Defendant examined himself as well as

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902-SA-614-2021

examined cadestral surveyor. On perusal of defendantss testimony,

during his cross-examination he admitted that, at the time of

measurement of land survey No.610/1, he has not given any notice

to the plaintifs, and the plaintifs were not present at the time of

measurement of land survey No.610/1.

4.

Thus it is clear that, while defendant carried out the

measurement through cadestral surveyor, he has not issued

notices to the adjoining land owners, and more specifcally to the

plaintif who was the owner of land survey No.542.

5.

With this kind of an evidence, the Trial Court decreed the suit

of plaintifs and directed the defendant to deliver the possession of

4R land so also restrained defendant and his relatives and other

persons, authority holders from alienating suit land to any third

person. An appeal carried against the judgment and decree of the

Trial Court by the defendant (present appellant) was also

dismissed. The present Second Appeal is against the concurrent

fndings of both the Courts below.

6.

I have heard both the sides. The learned Counsel for the

appellant has produced on record judgment passed in Second

Appeal No.294 of 2017. I have gone through the said judgment. In

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902-SA-614-2021

the said judgment the First Appellate Court was of the opinion that,

there was a necessity to have joint measurement of block Nos.47

and 56 owned by the defendant. Hence, the facts