B. H. Marlapalle, J. - (1.) This appeal arises from the decree passed by the lower Appellate Court in Regular Civil Appeal No. 90 of 1982. Regular Civil suit No. 171 of 1971 filed by the present respondents was dismissed by the learned Civil Judge, Junior Division at Sinnar on 8-2-1982 and the Lower appellate Court by the impugned decree dated 26-4-1991 has been pleased to decree the Civil Suit by holding that the appellants-defendants are encroachers on the land admeasuring 99 Ares in Gat No. 281 owned by the plaintiffs and further directed to deliver actual, vacant and peaceful possession of the said encroached portion shown in blue colour in the map at Exh. 44 prepared by the D. I. L. R. While admitting this appeal issues No. 2, 3 and 5 have been noted as the substantial questions of law and the substantial questions of law requiring consideration in this appeal are as under :- (a) Whether the suit filed by the plaintiffs was barred by limitation (b) Whether the defendants had perfected their title as owners by adverse possession in respect of the encroached portion of the suit land i. e. 99 Ares from Gat No. 281 of village Moh in Taluka Sinnar of Nasik District
(2.) As per the plaintiff original defendant Karbhari Pandu Bodake had encroached upon his agricultural land admeasuring 14 Acres 17 Gunthas located in Gat No. 281 (Survey No. 84/1) of village Moh to the extent of 99 Ares and this encroached land was merged with the defendants' land in Gat No. 304 (Survey no. 82/2). He, therefore, applied to the Surveyor and got surveyed report made in june, 1971 and it was indicated in the said report that the defendant had, in fact, encroached upon the plaintiffs land. The plaintiff examined the Surveyor Shri tukaram Shimaji Deshmukh (P. W. 1) , in addition to himself as P. W. 2. Shri shivram Dadu Pawar an employee from the Soil Conservation Department of the state Government was examined as P. W. 3 and Dagdu Bhise a neighbouring landholder was examined as P. W. 4. Whereas Defendant No. 1b was examined as d. W. 1 and Dhondu Valu was examined as D. W. 2. On assessment of the oral and documentary evidence and more particularly the Surveyor's report along with the map at Exh. 44, the Trial Court recorded a finding that the suit encroached land was owned by the plaintiff and it was necessary for him to have taken action against the defendant immediately by approaching the police station and the encroachment which was there for more than 18 years had created ownership right of the defendant in respect of the suit land by virtue of the principle of adverse possession. This finding regarding encroachment was not challenged by the defendants by filing an appeal/cross-appeal before the Lower Appellate court, whereas the finding regarding the ownership by adverse possession came to be challenged by the plaintiff in Regular Civil Appeal No. 90 of 1982, in which the defendants raised the issue of limitation and prayed that Regular Civil suit No. 171 of 1971 was required to be dismissed as it was hit by the law of limitation. The learned Joint District Judge at Nasik, therefore, framed the following two issues and answered both of them in favour of the plaintiffs and against the defendants :- (i) Whether the plaintiffs suit is barred by limitation (ii) Whether defendant has proved that he has become the owner of suit land by principal of adverse possession
(3.) The Lower Appellate Court, on assessment of the evidence adduced before the trial Court, relied upon the following two decisions of this Court while allowing the appeal:- (a) Yesu Sadhu Nimagre and ors. vs. Kundalika Babaji Nimagre and anr. reported in 7977 Mh. L. J. 130. (b) Rajaram Soma Mali and anr. vs. Kautik Motiram Deshmukh and ors. reported in 1977 Mh. LJ. 485.;