Case Note & Summary
The appellant, Sudhakar s/o Baburao Kulkarni, was the original plaintiff in Regular Civil Suit No. 143 of 2010 filed before the Civil Judge Junior Division. He sought possession of a portion of agricultural land bearing Gut No. 89/1 admeasuring 83 R situated at Pimpalgaon Barva, Tal. Bhokardan, Dist. Jalna, claiming that the defendants (respondents herein) had encroached upon it. The total area of Gat No. 89/1 was 10 H, 45 R, but the plaintiff had sold 9 H, 62 R, leaving 83 R with him. The defendants were duly served but failed to appear, and the suit proceeded ex-parte. The plaintiff filed his affidavit-in-chief and examined the Taluka Inspector of Land Records (TILR), who deposed that upon measurement, the defendants had encroached on the plaintiff's land. The Trial Court decreed the suit on 02-05-2015. The defendants challenged this decree before the District Court, Jalna, in Regular Civil Appeal No. 46 of 2017. The learned Ad-hoc District Judge-3, Jalna, allowed the appeal and set aside the Trial Court's judgment and decree. Aggrieved, the original plaintiff filed the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908. The High Court heard both sides and framed a substantial question of law regarding whether the First Appellate Court was justified in reversing the ex-parte decree without properly appreciating the evidence, particularly the TILR's testimony. The High Court found that the First Appellate Court had erred in reversing the decree without considering the evidence on record, which clearly showed encroachment. Consequently, the High Court allowed the second appeal, set aside the First Appellate Court's judgment, and restored the Trial Court's decree. The respondents were directed to remove the encroachment and hand over possession to the appellant within three months.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The High Court entertained the second appeal on the ground that the First Appellate Court failed to consider the evidence of the Taluka Inspector of Land Records who had measured the land and found encroachment, thereby raising a substantial question of law. (Paras 5-6) B) Evidence - Encroachment - Testimony of Taluka Inspector of Land Records - The Trial Court had decreed the suit based on the plaintiff's affidavit and the evidence of the TILR who deposed that defendants had encroached upon the plaintiff's land. The First Appellate Court reversed the decree without properly appreciating this evidence. (Paras 3-4) C) Civil Procedure - Ex-Parte Decree - Reversal by First Appellate Court - The First Appellate Court allowed the appeal and set aside the ex-parte decree, but the High Court found that the First Appellate Court had not given due weight to the evidence on record, leading to a miscarriage of justice. (Paras 4-5)
Issue of Consideration
Whether the First Appellate Court was justified in reversing the ex-parte decree of the Trial Court without properly appreciating the evidence on record, particularly the testimony of the Taluka Inspector of Land Records.
Final Decision
Second Appeal allowed. Judgment and decree passed by the First Appellate Court (Ad-hoc District Judge-3, Jalna) in Regular Civil Appeal No. 46 of 2017 is set aside. The judgment and decree passed by the Trial Court (Civil Judge Junior Division) in Regular Civil Suit No. 143 of 2010 dated 02-05-2015 is restored. Respondents are directed to remove the encroachment and hand over possession of the suit property to the appellant within three months.
Law Points
- Second appeal under Section 100 CPC
- substantial question of law
- ex-parte decree
- encroachment
- evidence of Taluka Inspector of Land Records
- reversal by first appellate court without proper appreciation of evidence
