Case Note & Summary
The case involves a dispute over land encroachment between the plaintiff-respondent (Deolal) and the defendant-appellants (Ukarda and his legal representatives). The plaintiff filed a suit (R.C.S. No. 265 of 1989) alleging that the defendant encroached on his land bearing Gat No. 257. The defendant denied the encroachment and claimed that his land Gat No. 256 was not measured. The trial court held that the plaintiff proved encroachment but also found that the defendant had perfected title by adverse possession, thus dismissing the suit. The plaintiff appealed to the First Appellate Court (Regular Civil Appeal No. 157 of 1992), which reversed the trial court's decision, holding that the measurement map (Exh. 50) proved encroachment and directed the defendant to hand over possession. The defendant filed a second appeal before the Bombay High Court. The High Court framed a substantial question of law regarding the proof of the measurement map. The court noted that the map was not proved as per law because the surveyor who prepared it was not examined. The court held that the First Appellate Court's finding of encroachment was perverse and based on no evidence. Consequently, the High Court allowed the appeal, set aside the First Appellate Court's judgment, and restored the trial court's decree dismissing the suit. The court also disposed of the pending civil application.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The High Court can interfere with findings of fact if the lower court has acted on no evidence or misappreciated evidence. In this case, the First Appellate Court relied on a measurement map (Exh. 50) without the surveyor being examined, which is a perverse finding. (Paras 5-6) B) Evidence Act - Proof of Documents - Measurement Map - Sections 61, 62, 63 - A measurement map is a documentary evidence that must be proved by examining the person who prepared it or by other primary evidence. Mere marking of the map as an exhibit does not prove its contents. (Para 6) C) Property Law - Encroachment - Burden of Proof - The plaintiff must prove encroachment by cogent evidence. In this case, the plaintiff failed to examine the surveyor who prepared the map, and the map was not proved as per law, hence the finding of encroachment is unsustainable. (Paras 6-7)
Issue of Consideration
Whether the First Appellate Court was justified in reversing the trial court's judgment without properly considering the evidence, particularly the measurement map (Exh. 50) which was not proved as per law.
Final Decision
The High Court allowed the appeal, set aside the judgment of the First Appellate Court, and restored the trial court's decree dismissing the suit. The civil application (C.A.S. No. 35 of 2019) was also disposed of.
Law Points
- Adverse possession
- Burden of proof
- Encroachment
- Measurement map
- Examination of surveyor
- Substantial question of law
