Case Note & Summary
The case involves two second appeals by the City and Industrial Development Corporation (CIDCO) against a common judgment of the appellate court. The respondents, Anwar Khan and Shabbir Khan, claimed exclusive ownership of land survey no. 34/1 at Jaswantpura, Aurangabad, and alleged that CIDCO had encroached upon a 28 Are portion of their property. The trial court partly decreed the suit, directing CIDCO to deliver possession of 13 Are. Both parties appealed: CIDCO's appeal was dismissed, while the plaintiffs' appeal was allowed, modifying the decree to direct delivery of possession of the entire 28 Are. CIDCO then filed these second appeals. The High Court noted that the suit property was part of a larger land survey no. 34 with multiple sub-divisions, and there was no clear demarcation or survey evidence to determine the exact extent of encroachment. The court held that the lower courts erred in deciding the extent without proper evidence. Consequently, the High Court set aside the impugned judgment and remanded the matter to the trial court for fresh consideration, allowing both parties to lead additional evidence on the issue of demarcation and measurement. The appeals were allowed in part, and the civil applications were disposed of.
Headnote
A) Property Law - Ownership and Encroachment - Burden of Proof - Plaintiffs claimed ownership of land survey no. 34/1 and alleged encroachment by CIDCO over 28 Are - Trial court decreed possession of 13 Are, appellate court enhanced to 28 Are - Held that without proper demarcation and survey of sub-divisions, the exact extent of encroachment could not be determined, requiring remand for fresh evidence (Paras 4-6).
Issue of Consideration
Whether the courts below correctly determined the extent of encroachment by CIDCO on the plaintiffs' land without proper demarcation and survey evidence.
Final Decision
The High Court allowed the appeals in part, set aside the impugned judgment and decree, and remanded the matter to the trial court for fresh consideration, permitting both parties to lead additional evidence on the issue of demarcation and measurement.
Law Points
- Burden of proof
- Ownership
- Encroachment
- Demarcation
- Survey
- Remand
Case Details
2022 LawText (BOM) (01) 25
Second Appeal No. 248 of 2019 and Second Appeal No. 249 of 2019
Mr. A.S. Bajaj for appellants, Mr. P.S. Paranjape and Mr. A.S. Kharosekar for respondents no. 1 and 2, Mr. Girish Awale for Intervenor
The City and Industrial Development Corporation, Through its Administrator, New Aurangabad (in SA/248/2019); The Administrator, The City and Industrial Development Corporation, Through its Administrator, Panjabrao S/o. Shyamrao Chavan (in SA/249/2019)
Anwar Khan S/o Rahim Khan, Shabbir Khan S/o Rahim Khan, State of Maharashtra through the Collector, Aurangabad, The Municipal Corporation, Aurangabad
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Nature of Litigation
Civil suit for declaration of ownership and possession, alleging encroachment by defendant.
Remedy Sought
Plaintiffs sought declaration of ownership and possession of 28 Are portion of land survey no. 34/1, and delivery of possession from CIDCO.
Filing Reason
Plaintiffs claimed CIDCO encroached upon their land.
Previous Decisions
Trial court decreed suit partly, directing delivery of possession of 13 Are. Appellate court allowed plaintiffs' appeal, modifying decree to 28 Are, and dismissed CIDCO's appeal.
Issues
Whether the lower courts correctly determined the extent of encroachment without proper demarcation and survey evidence.
Submissions/Arguments
Appellant argued that both courts erred in appreciating facts and evidence, and that without clear demarcation of sub-divisions, no inference of encroachment could be drawn.
Ratio Decidendi
In a suit for encroachment, the exact extent of encroachment must be determined based on proper demarcation and survey evidence; without such evidence, the court cannot conclusively decide the extent of encroachment.
Judgment Excerpts
Though the suit property was a part of the entire land survey no. 34 comprising of different parts, without there being clear demarcation of its sub-divisions, no inference of encroachment could be drawn.
Procedural History
Plaintiffs filed suit for declaration and possession. Trial court decreed partly (13 Are). Both parties appealed. Appellate court dismissed CIDCO's appeal and allowed plaintiffs' appeal (28 Are). CIDCO filed second appeals. High Court remanded for fresh trial.
