Case Note & Summary
The dispute pertained to agricultural lands in village Navgan, Rajuri, Beed district. The respondent/plaintiff, Sarjerao s/o. Rama Yadav, claimed ownership of Gat Nos. 156 and 159, while the appellants/defendants, Sahebrao, Pralhad, and Tukaram Yadav, owned adjacent Gat No. 157. The plaintiff alleged that the defendants had encroached upon his lands by 2 R portion on the eastern side of Gat No. 157 over Gat No. 159, and 2 R portion on the western side over Gat No. 156. The defendants denied encroachment but admitted the ownership positions. During the suit, the plaintiff applied to the Cadastral Surveyor for measurement, and the surveyor prepared maps (Exhs. 36/C and 39/C) showing encroachment. The trial court (Joint Civil Judge, Senior Division, Beed) decreed the suit for removal of encroachment. The first appellate court (Principal District Judge, Beed) dismissed the appeal. In second appeal, the appellants argued that the findings were perverse and that the survey was not conducted by a court commissioner. The High Court, per Justice T.V. Nalawade, held that the concurrent findings were based on evidence, including the cadastral surveyor's testimony and maps, and were not perverse. No substantial question of law arose, and the appeal was dismissed with costs.
Headnote
A) Property Law - Encroachment - Removal of Encroachment - Specific Relief Act, 1963, Section 38 - The plaintiff sought removal of encroachment over his land Gat Nos. 156 and 159 by defendants who owned adjacent Gat No. 157. The trial court and first appellate court concurrently found encroachment of 2 R portion on each land based on cadastral survey maps and testimony. The High Court held that no substantial question of law arose as findings were based on evidence and not perverse. (Paras 1-5) B) Civil Procedure - Second Appeal - Substantial Question of Law - Code of Civil Procedure, 1908, Section 100 - The High Court reiterated that interference in second appeal is limited to cases where findings are perverse or based on no evidence. Since the courts below had properly appreciated the cadastral survey evidence, no interference was warranted. (Paras 5-6)
Issue of Consideration
Whether the concurrent findings of fact regarding encroachment by the appellants over the respondent's land are perverse or based on no evidence, warranting interference in second appeal under Section 100 of CPC.
Final Decision
Second Appeal dismissed with costs. Civil Application disposed of.
Law Points
- Encroachment
- Burden of proof
- Cadastral survey evidence
- Concurrent findings
- Second appeal
- Substantial question of law
