Case Note & Summary
The case involves a second appeal arising from a suit for recovery of possession of encroached land. The plaintiffs (respondents) claimed that the defendant (appellant) encroached upon a portion of their agricultural land bearing Gat No.58 at mouza Sawana, Tq. Chikhali, District Buldhana. The trial court decreed the suit, and the first appellate court dismissed the appeal. The defendant filed a second appeal in the High Court of Bombay, Nagpur Bench. The High Court admitted the appeal on a substantial question of law: whether the impugned judgments were unsustainable and contrary to law. The appellant's counsel argued that there was no whisper in the judgments about the defendant's claim of ownership and possession. The High Court found that the courts below had not considered the defendant's title and possession, and that proper measurement was necessary to determine the encroached portion. The court answered the substantial question of law in the affirmative, set aside the impugned judgments, and remanded the matter to the trial court for fresh consideration after giving an opportunity to the parties to lead evidence on measurement and title.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - The court framed a substantial question of law as to whether the impugned judgments were unsustainable and contrary to law. The High Court answered in the affirmative, holding that the courts below failed to consider the defendant's claim of ownership and possession, and that proper measurement was necessary to determine encroachment. (Paras 2-4)
Issue of Consideration
Whether the impugned judgments and orders are unsustainable and contrary to law requiring interference by this Court?
Final Decision
The Second Appeal is allowed. The impugned judgments and orders are set aside. The matter is remanded to the trial Court for fresh consideration after giving an opportunity to the parties to lead evidence on measurement and title.
Law Points
- Second appeal
- substantial question of law
- encroachment
- possession
- title
- measurement
- burden of proof
Case Details
2014 LawText (BOM) (03) 108
SECOND APPEAL NO.250 OF 2013
Mr.Sawan Alaspurkar, Adv. h/f. Mr.Anand Parchure, Adv. for the Appellant; Mr.Abhay Sambre, Adv. for Respondent nos. 1 to 3.
Bhagwat Sheshrao Bhutekar
Tulshiram s/o. Harsing Salokh, Baban s/o. Digambar Salokh, Ramdas s/o. Digambar Salokh
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Nature of Litigation
Second appeal against judgment and order in Regular Civil Appeal No.117 of 2009, which arose from Regular Civil Suit No.18 of 2007 for recovery of possession of encroached land.
Remedy Sought
Appellant sought to set aside the judgments and orders of the courts below which decreed the suit for possession.
Filing Reason
Appellant claimed that the courts below did not consider his ownership and possession of the suit land and that proper measurement was not done.
Previous Decisions
Regular Civil Suit No.18 of 2007 was decreed on 13.11.2009 by the Civil Judge (Jr.Dn.), Chikhali. Regular Civil Appeal No.117 of 2009 was dismissed on 25.3.2013 by the Ad hoc District Judge-2, Buldhana.
Issues
Whether the impugned judgments and orders are unsustainable and contrary to law requiring interference by this Court?
Submissions/Arguments
Learned Counsel for the appellant submitted that there was no whisper in the judgments about the defendant's claim of ownership and possession of the suit land.
Ratio Decidendi
The courts below failed to consider the defendant's claim of ownership and possession, and proper measurement was necessary to determine the encroached portion. Hence, the impugned judgments were unsustainable and contrary to law.
Judgment Excerpts
The grievance of the learned Counsel for the appellant is that there was no whisper in the judgments about the defendant's claim of ownership and possession of the suit land.
Procedural History
Regular Civil Suit No.18 of 2007 was filed by the plaintiffs for recovery of possession of encroached land. The suit was decreed on 13.11.2009 by the Civil Judge (Jr.Dn.), Chikhali. The defendant appealed in Regular Civil Appeal No.117 of 2009, which was dismissed on 25.3.2013 by the Ad hoc District Judge-2, Buldhana. The defendant then filed the present Second Appeal No.250 of 2013 in the High Court of Bombay, Nagpur Bench.
