- (1.)THIS is a defendant's second appeal. The facts giving rise to this appeal are as follows - The suit was initially instituted by one Surendrasing ramrao Naik through his constituted attorney Shri Vishveshwar Tukaramji giripunje. Subsequently, the original plaintiff surendrasing sold the suit property to his constituted attorney Vishveshwar. Both now are plaintiffs in this suit. The defendant Manohar is the neighbour of plaintiff. The plaintiff is the owner of open land in ward No. 26, Circle No. 6 Zilla Road, Mahal nagpur. The defendant has his house towards North of the said land bearing Municipal Corporation No. 342/1. The plaintiff submits that the defendant has committed encroachment shown by letters hbcdnpt as shown in the plaint map, and the encroachment is to the extent of 159 sq. ft. It is alleged that the defendant committed the encroachment by constructing a Well in the year 1980. The plaintiff further contends that there was a dispute regarding the land ABCD EFGH covered by blue lines in the plaint map with the Nazul department, who claimed that the land belonged to the nazul department. The plaintiff had, therefore, instituted Civil Suit no. 312/95 against the Collector of Nagpur. The suit came to be decreed in favour of the plaintiff and plaintiff was declared to be the owner. The appeals preferred by the state before the District Judge and the High court were rejected. The plaintiff submits that since the plaintiff was out of Nagpur for quite some time on account of the fact that he had shifted his residence to village kawatha, the defendant took disadvantage of the fact and committed encroachment. The plaintiff seeks to remove this encroachment and prays for a decree for possession of the site.
(2.)THE defendant has filed the written statement. The defendant does not dispute that the plaintiff is the owner of area known as Naikwadi and he owns landed property in Nagpur. The defendant denies that the plaintiff is the owner of the plot shown by letters ABCDEFGH. He also denies that he has committed encroachment on the site as contended by the plaintiff. The defendant also denies that there was any dispute between plaintiff and the Government over the suit land and that the proceedings ended in favour of the plaintiff. The defendant submits that his house was purchased in the year 1935 from one Sitabai Giripunje. The defendant has been in possession of the property since more than 40 years adversely, and, to the knowledge of the plaintiff uninterruptedly. It is contended that, therefore, the suit is barred by limitation. It is further contention of the defendant that in the year 1982 there was a measurement by the City Survey Department in which it was found that the defendant has not committed any encroachment and plaintiff did not prefer any appeal against the said measurement. The defendant, therefore, prayed that the suit be dismissed.
(3.)THE learned Judge of the trial Court framed issues and found that the plaintiff is the owner of the site ABCD EFGH and defendant had committed encroachment. He has also found that the defendant was not in adverse possession. Holding so, he decreed the suit in favour of the plaintiff. The Appellate Court concurred with the findings recorded by the trial Court. This second appeal was admitted by Patel, J. , on ground No. 2, which reads as follows -
"that as a matter of fact the entire burden to establish that the title to the property in suit vested originally in plaintiff No. 1 and on his alleged transfer in favour of the plaintiff No. 2 in the plaintiff No. 2 and there being no evidence whatsoever to establish the transaction as a result of which title was said to have been created in favour of the said plaintiff, merely putting on record certain irrelevant judgments which were clearly inadmissible in view of the mandatory provisions of section 43 of the Indian evidence Act, the courts below have passed a decree in favour of the plaintiffs for which there is no foundation on the record. "