Case Note & Summary
The plaintiffs, owners of field Gat No. 268 admeasuring 5.88 HR at village Dhamana Bk, Tahsil Akot, District Akola, filed a suit alleging encroachment by the defendants, adjacent land owners. On 24.6.2004, the Taluqa Inspector of Land Records (TILR), Akot, measured the land and found that the defendants had encroached upon 00.46 HR of the plaintiffs' land. Despite a legal notice dated 22.9.2004, the defendants did not remove the encroachment, leading to the suit. The defendants denied the allegations, contending that there was a government 'Shivdand' between the villages which the TILR failed to show, and that the measurement was illegal. The Trial Court dismissed the suit, finding that the plaintiffs failed to prove encroachment and refused to order an enquiry into mesne profits. The first appeal was also dismissed. In second appeal, the High Court admitted the appeal on the substantial question of law whether the courts below were right in dismissing the suit. The High Court observed that the courts below had not properly appreciated the evidence, including the TILR report, and had erred in dismissing the suit without considering the claim for mesne profits. The High Court allowed the appeal, set aside the judgments of the courts below, and remanded the matter to the Trial Court for fresh consideration only on the issue of mesne profits, while confirming the dismissal of the suit for encroachment.
Headnote
A) Property Law - Encroachment - Burden of Proof - Suit for removal of encroachment and mesne profits - Plaintiffs claimed encroachment by defendants on their land based on TILR measurement - Trial court and first appellate court dismissed suit holding plaintiffs failed to prove encroachment - Held that courts below erred in ignoring the TILR report and evidence on record - Matter remanded for fresh consideration on mesne profits (Paras 1-8).
Issue of Consideration
Whether the courts below were right in dismissing the suit for encroachment and refusing to order an enquiry into mesne profits.
Final Decision
Second appeal allowed. Judgments of the courts below set aside. Suit dismissed as regards encroachment, but matter remanded to Trial Court for fresh consideration only on the issue of mesne profits.
Law Points
- Encroachment
- Mesne profits
- Burden of proof
- Remand
