Bombay High Court Allows Second Appeal in Demarcation Suit, Setting Aside Concurrent Findings for Ignoring Amended Pleadings. The Court ruled that the lower courts' failure to consider the amended plaint which corrected the western boundary to 'Marotigol' and to appreciate the Commissioner's report and PW-2 testimony rendered the findings on boundaries unsustainable under Section 100 of the Code of Civil Procedure, 1908.

Suit for demarcation of property and rectification of survey records alleging encroachment.

Plaintiffs (appellants) sought demarcation of their property boundary and correction of survey records to reflect their title area of 545 sq. metres, claiming that respondents had encroached on a portion of their land.

Plaintiffs alleged that defendants had included a portion of their land in survey no. 4/12 and that survey records inaccurately recorded area and boundaries, causing shortfall and encroachment.

Trial Court dismissed the suit and the counterclaims of the government respondents by judgment dated 16/02/2004, holding that plaintiffs failed to prove any part of their property was included in Survey No. 4/12. The first appellate court (Additional District Judge, South Goa) dismissed Regular Civil Appeal No. 29/2004 by judgment dated 04/04/2005, confirming the trial court's findings.

Whether the reason for disbelieving the case of the plaintiff based on the portion of the Commissioner's testimony be sustained in law, when the Commissioner's report and the testimony on the matter in issue/dispute was ignored all together? Whether the findings rendered by the appellate Court that the plaintiff has failed to prove the western boundary of the suit property, by holding that there was variance in the pleadings and proof be sustained in the eyes of law when the said findings were rendered by ignoring the amended pleadings? Whether the findings of the appellate Court that the northern boundary of the plaintiffs' property as per the sale deed is not as per the boundary on loco, be said to be legal, when the same has been arrived at by ignoring the material evidence on record and more particularly the deposition of PW-2?

Appellants contended that the lower courts, while dismissing the suit, failed to consider the amended plaint which corrected the western boundary to 'Marotigol', and ignored the Commissioner's plan (Exhibit 75) and deposition of PW-2, which supported their claim of encroachment into their property. They argued that the respondents' title documents did not show 'Marotigol' as the western boundary, confirming their case. Respondents contended that the survey records accurately depicted the division between properties and that the appellants had failed to prove any encroachment; they argued that the lower courts correctly appreciated evidence and that the boundary line was clear from survey records, negating the need for demarcation.

The failure of courts to consider amended pleadings and material evidence such as the Commissioner's plan and testimony vitiates the findings on boundaries in a suit for demarcation. Consequently, the court must allow the appeal and remand for fresh consideration based on the correct pleadings and evidence.

If the amended plaint was considered the Courts below would have taken into consideration the western boundary as 'Marotigol' which was in conformity with the documents of title produced on record. The learned Judge without going through the amended plaint has erroneously discarded the evidence on the ground that the evidence was beyond the pleadings of the appellants.

Plaintiffs filed suit for demarcation. Trial Court dismissed suit and counterclaims on 16/02/2004. Plaintiffs appealed to Additional District Judge, South Goa in Regular Civil Appeal No. 29/2004, which was dismissed on 04/04/2005. Second Appeal No. 102/2005 filed in High Court, admitted on 26/09/2006 on three substantial questions of law. High Court heard the appeal and pronounced judgment on 13/12/2011.

• Code of Civil Procedure, 1908: Section 100, Order VI Rule 17, Order XXVI Rules 9, 10