Case Note & Summary
The present second appeal was filed by the original defendants challenging the concurrent findings and decree in R.C.A. No.65/2015 by the learned District Judge-1, Ahmedpur, Dist. Latur dated 17.10.2016 and R.C.S. No.69/2009 by Jt. Civil Judge Junior Division, Ahmedpur, Dist. Latur dated 16.10.2015, whereby the suit filed by the present respondents-plaintiffs for removal of encroachment and possession came to be decreed against the present appellants. The original plaintiff No.1 is the owner and possessor of 80 R land from Gat No.377, whereas plaintiff No.2 is the owner and possessor of 1 H 42 R from the same Gat number. Land belonging to plaintiff No.1 is towards north of land belonging to plaintiff No.2. Defendants are the owners of 65 R from Gat No.393 and it stands in the name of defendant Nos.2 and 3. Defendant Nos.1 to 3 are also the owners and possessors of land admeasuring 1 H 63 R from Gat No.376, though the land stands in the name of defendant No.3. It has been contended by the plaintiffs that defendant No.3 conspired with revenue authorities and got more land mutated to the record of Gat No.376. Land Gat No.393 is towards eastern side of plaintiffs' land, whereas Gat No.376 is towards the north of plaintiffs' land. According to the plaintiffs, defendants have made encroachment to the extent of 9 Gunthas as well as 6 Gunthas in Gat No.377. When they got the measurement done and the encroachment was revealed, they had prayed for possession of the encroached portion from the defendants. As the defendants refused, they filed suit for removal of encroachment and possession. Defendant Nos.1 to 5 resisted the claim of the plaintiffs by filing written statement. They have not denied the boundaries of Gat No.377. However, it was contended that the map attached to the plaint is false. They denied the map drawn by TILR. According to them, the measurement has been done behind their back. So also, it has been denied that the owner of Gat No.394 has given possession of the land to plaintiffs in May, 2002. It was stated that the suit is not within limitation. The trial court decreed the suit, and the first appellate court confirmed the decree. In the second appeal, the High Court found no substantial question of law and dismissed the appeal.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court held that the second appeal does not involve any substantial question of law as the findings of fact by both lower courts were concurrent and based on evidence, including measurement by TILR and revenue records. The appeal was dismissed. (Paras 1-10) B) Property Law - Encroachment - Possession - Limitation - The plaintiffs' suit for removal of encroachment and possession was decreed based on measurement showing encroachment of 9 Gunthas and 6 Gunthas in Gat No.377. The defendants' plea of limitation was rejected as the encroachment was continuing. (Paras 2-10)
Issue of Consideration
Whether the second appeal involves any substantial question of law warranting interference under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
Second appeal dismissed. The concurrent findings of fact by the lower courts were upheld. No substantial question of law involved.
Law Points
- Second appeal under Section 100 CPC
- concurrent findings of fact
- no substantial question of law
- encroachment
- possession
- limitation
- measurement by TILR
- revenue records
