Case Note & Summary
The present second appeal was filed by the original plaintiff, Raghunath Kashinath Chavan, against the judgment and decree passed by the lower appellate court which reversed the trial court's decree in his favor. The plaintiff claimed ownership of 1 Acre 6 Gunthas of land from agricultural land Sy.No.109, situated in village Pimperkhed, Tq. Ashti, Dist. Beed. The land originally belonged to his father Kashinath, who partitioned it among his sons during his lifetime. In that partition, the plaintiff received the suit land. The plaintiff alleged that the defendants had encroached upon his land. A Cadastral Surveyor was appointed who found encroachment of 1½ gunthas over the share of the plaintiff and his brother each. The trial court decreed the suit in favor of the plaintiff. However, the lower appellate court reversed the decree. The High Court admitted the appeal on two substantial questions of law: (i) whether the decree ought to have been passed when the Cadastral Surveyor found encroachment; and (ii) whether the lower appellate court while reversing the trial court's finding came within close quarters of the reasoning of the trial court. The High Court heard the appellant's counsel and perused the record. It found that the lower appellate court did not properly consider the Cadastral Surveyor's report and its reasoning was not in accordance with law. The High Court set aside the judgment of the lower appellate court and remanded the matter back to the lower appellate court for fresh consideration, directing it to decide the appeal afresh after giving opportunity to both parties to lead evidence and after properly appreciating the evidence on record. The appeal was allowed accordingly.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The appeal was admitted on two substantial questions of law: (i) whether decree ought to have been passed when Cadastral Surveyor found encroachment of 1½ gunthas over plaintiff's share; (ii) whether lower appellate court while reversing trial court's finding came within close quarters of trial court's reasoning. (Paras 1-2) B) Property Law - Encroachment - Cadastral Surveyor Report - The plaintiff claimed ownership of 1 Acre 6 Gunthas land from Sy.No.109, alleging encroachment by defendants. The Cadastral Surveyor reported encroachment of 1½ gunthas over plaintiff's share. The trial court decreed the suit, but the lower appellate court reversed. The High Court found that the lower appellate court did not properly consider the survey report and remanded the matter for fresh consideration. (Paras 3-6) C) Civil Procedure - Appellate Court's Reversal - Scope of Interference - The lower appellate court while reversing the trial court's decree must not merely substitute its own view but must properly appreciate evidence. The High Court held that the lower appellate court's reasoning was not in accordance with law and set aside the judgment. (Paras 5-6)
Issue of Consideration
Whether the lower appellate court erred in reversing the trial court's decree when the Cadastral Surveyor had found encroachment of 1½ gunthas over the plaintiff's share, and whether the lower appellate court came within close quarters of the reasoning of the trial court.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the lower appellate court, and remanded the matter back to the lower appellate court for fresh consideration. The lower appellate court was directed to decide the appeal afresh after giving opportunity to both parties to lead evidence and after properly appreciating the evidence on record.
Law Points
- Substantial question of law
- reversal of findings by lower appellate court
- encroachment
- cadastral surveyor report
- partition
- burden of proof
