Case Note & Summary
The respondent, a co-operative housing society, filed a suit against the appellants, claiming ownership of land admeasuring 11613 sq. mtrs. in Survey No.65/2 at Mouza Jaitala, Nagpur, under a sale deed dated 14-11-1973 with a corrected deed dated 18-09-1974. A residential layout was sanctioned. In a meeting held on 15-04-1989, the appellants were shown as encroachers on the society's property. As they failed to remove the encroachment, the suit sought restoration of possession of the encroached area. The appellants resisted, contending that their houses were located on Survey No.87/1, 2, 3 and not on the society's land. The trial court decreed the suit, finding that the appellants had encroached upon the respondent's property. The appellants' first appeal was dismissed by the District Judge, Nagpur, by a common judgment dated 02-05-2009. The appellants then filed these second appeals. Before the High Court, the appellants raised three contentions: (i) the maps Exhibits 88, 89 and 94 could not be considered as evidence because their author was not examined; (ii) the respondent failed to prove the encroachment; (iii) the suit was barred by the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act. The Court rejected all three. On the first point, it held that since the maps were exhibited without any objection as to admissibility or mode of proof during the trial, and no such objection was raised even before the first appellate court, the objection could not be taken at the second appeal stage, relying on Supreme Court decisions in P.C. Thomas v. P.M. Ismail and Dayamathi Bai v. K.M. Shaffi. On the second point, the Court found that both the lower courts had concurrently concluded, based on the maps and other evidence, that the appellants had encroached on the respondent's land; the maps clearly showed the location, and the appellants had not disputed their correctness or shown any perversity in the findings. On the third point, the Court noted that the society only claimed possession of its own property in Survey No.65/2, which was not notified under the Slum Areas Act; the property notified was Survey No.87/123, which was not the subject matter of the suit. Accordingly, the Court held that no substantial question of law arose and dismissed both second appeals, affirming the concurrent findings and the decree for possession.
Headnote
A) Civil Procedure - Documentary Evidence - Admissibility and Mode of Proof - Code of Civil Procedure, 1908 (CPC) - Maps exhibited in evidence without objection on grounds of inadmissibility or mode of proof are admissible; any procedural irregularity in proof stands waived. The Apex Court in P.C. Thomas v. P.M. Ismail (2009) 10 SCC 239 and Dayamathi Bai v. K.M. Shaffi (2004) 7 SCC 107 has held that such objection must be raised at the time of exhibition and cannot be taken later. Here, no objection was raised before the trial court or first appellate court. Held: maps are admissible and the contention to the contrary is rejected. (Para 6) B) Property Law - Encroachment - Proof of Encroachment and Concurrent Findings - Transfer of Property Act, 1882 - Both courts below, on appreciation of evidence including maps Exhibits 88 and 89, found that the appellants had encroached upon the respondent's land in Survey No.65/2, while the appellants failed to prove that their structures were on Survey No.87/1,2,3. The maps depicted the exact location of the houses as encroachments, and their correctness was not disputed in cross-examination. Held: the concurrent findings of fact are not perverse and no substantial question of law arises. (Para 7) C) Maharashtra Slum Areas Act - Bar of Suit - Applicability to Suit Property - Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - The suit was not barred under the Act because the property notified under the Act, Survey No.87/123, was not the subject matter of the suit; the respondent only claimed possession of its property Survey No.65/2, which was not notified. Held: the contention that the suit is barred under the Slum Areas Act is without merit and rejected. (Para 8)
Issue of Consideration
Whether the maps Exhibits 88, 89 and 94 are admissible in evidence without examining their author; whether the respondent proved encroachment by the appellants; whether the suit is barred by the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act.
Final Decision
Both second appeals dismissed; concurrent findings of fact upheld; no substantial question of law arises; decree for possession of encroached portion in Survey No.65/2 confirmed.
Law Points
- Maps exhibited without objection during trial are admissible
- objection to admissibility or mode of proof must be taken at the time of exhibition and can be waived
- concurrent findings of fact on encroachment are not interfered with in second appeal absent perversity
- suit not barred under Maharashtra Slum Areas Act when the suit property is not notified under that Act.
