1. Draft amendment is granted.
2. This appeal under section 100 of the Civil Procedure is filed by the original defendant Nos.2 and 5 against whom as well as against the respondents No.3 to 6 herein, the respondents No.1 and 2 – original plaintiffs filed Regular Civil Suit No.420 of 2002 for measurement of the land of the plaintiffs as well as the defendants in survey No. 1258 shown in the 7-12 Abstract of revenue record by appointing an officer as Court Commissioner from the office of the District Land Records and on carrying out the measurement, for passing an order for handing over the possession of the land if found encroached by the defendants on the land of the plaintiffs. The plaintiffs have also prayed for permanent injunction restraining the defendants from transferring the land in possession of the defendants out of land bearing survey No.1258.
3. It is the case of the plaintiffs that the plaintiffs purchased land admeasuring 13255 square meters by three different sale deeds between 1998 to 1999. The last sale deed was executed on 21.01.1999. It is further case of the plaintiffs that on 24.04.2001, the plaintiffs had got measurement done of their land by the officer of the Land Records and as per the said measurement, the land in possession of the plaintiffs was found 10810 square meters. It is also case of the plaintiffs that as per the original measurement which was carried out in the year 1972, the boundaries of entire survey No.1258 were matching and when the measurement of entire survey No.1258 was compared with the measurement found by the D.I.L.R from the land of the plaintiffs, it was found that the defendants were holding excess land in survey No.1258 to the extent of 2475 square meters. The plaintiffs have further averred that on plaintiffs coming to know about such excess land held by the defendants which was in fact encroachment on the land of the plaintiffs, the plaintiffs asked the defendants to handover the possession of such excess land to the plaintiffs, but the defendants did not take any steps to handover the encroached land of the plaintiffs and, therefore, the suit was filed.
4. The suit was resisted by the defendants denying the allegation of encroachment and also taking contention that the plaintiffs had encroached on the pond (Talavadi) land and the plaintiffs have not proved the encroachment on their lands by the defendants. The defendants further took contention that the suit of the plaintiffs was not entertainable unless surrounding lands were first measured. The defendants also took of the plea that the report of the D.I.L.R Officer could not be taken into consideration to believe the encroachment alleged to have been done by the defendants and that the plea of the defendants as regards the adverse possession is also required to be considered. The defendants lastly took the contention that the suit of the plaintiffs was time barred.
5. The learned Trial Judge, on appreciation of evidence, found that the defendants hold excess land in survey No.1258 to the extent of 2479 square meters, but further held that the plaintiffs have not proved that whether such excess land held by the defendants is from the land of the plaintiffs and also held that the suit of the plaintiffs was not within the time limit, as the suit was filed after a long period of 12 years from prescribed time limit for filing suit. On such reasoning, the learned Trial Judge dismissed the suit vide judgment and decree dated 24.04.2007.
6. The plaintiffs, therefore, filed Regular Civil Appeal No.42 of 2007. The learned Appellate Judge, on appreciation of evidence, found that the short fall in the land of the plaintiffs is exactly the excess land held by the defendants from survey No.1258. The learned Appellate Judge came to the conclusion that the entire land of survey No.1258 was measured and from this very survey number, if the defendants are found to have held excess land to the extent of 2479 square meters, the same could be the encroachment done by the defendants on the land of the plaintiffs. The learned Appellate Judge further considered the plea of the defendants as regards the limitation. The learned Appellate Judge found that after the plaintiffs’ purchased the land in the year 1999, the plaintiffs got the measurement done for the first time by the D.I.L.R Officer and came to know that the plaintiffs were holding less land compared to the area mentioned in their sale deeds. The learned Appellate Judge further considered that when further measurement was carried out on 24.04.2001 by the D.I.L.R Officer, the plaintiffs could find out that about the exact encroachment done by the defendants and, therefore, the limitation was started from the date of knowledge of the plaintiffs. Learned Appellate Judge thus came to the conclusion that the suit of the plaintiffs was within the time limited. The learned Appellate Judge also observed that there was no question of considering any plea of adverse possession on the part of the defendants because the defendants have totally failed to establish that they held the disputed land adversly. The learned Appellate Judge, thus, allowed the appeal and ordered the defendants to handover the possession of the land admeasuring 2477 square meters from survey No.1258 to the plaintiffs by judgment and decree dated 30.08.2012. It is this judgment and decree which is under challenge before this Court in this appeal.
7. At this stage, it is required to be noted that the suit was originally filed against six defendants. The present appeal is filed by only two defendants. It is further required to be noted that as found by the learned Trial Judge and as per the case of the defendants themselves, the defendants held their lands from survey No.1258 jointly and when measurement was carried out, the Court Commissioner also found the possession of the defendants jointly.
8. I have heard learned advocates for the parties.
9. Learned advocate Ms.Sangita Pahva for the appellants submitted that when the learned Trial Judge on appreciation of evidence found that the plaintiffs had failed to prove that the defendants had encroached upon their lands and when the suit of the plaintiffs was time barred, the learned Appellate Judge was not justified in interfering with the findings recorded by the learned Trial Judge without assigning the cogent reasons. She submitted that the plaintiffs failed in the suit mainly on the ground that no measurement of the land covered by the pond was carried out. She submitted that the measurement of the land in the pond was required to be taken by the D.I.L.R because the sale deeds in favour of the plaintiffs clearly recite about the land covered by the pond. She submitted that whatever may be the area of the land in pond either small or large, but the fact remained that the predecessor of the plaintiffs did show in the sale-deeds that there was some part of the land which was in pond, which was required to be got measured by the plaintiffs to have full and entire possession of the land by the plaintiffs from survey No.1258. She submitted that the learned Trial Judge well considered the evidence of the officer of the D.I.L.R who stated before the Court below that no measurement of the pond land was carried out which was stated to be portion of the land of survey No.1258 as per the sale deed. Learned advocate for the appellants further stated that the learned Trial Judge has rightly considered that the land was already measured in the year 1972 and right from the year 1951, if the defendants were holding the possession of the land even excess to their entitlement than also the defendants acquired the rights to such excess land. In that circumstances, when there was no suit earlier filed against the defendants, the plaintiffs being the predecessor in title of the land just cannot file a suit, on the ground that the plaintiffs came to know about the encroachment by the defendants in the year 1999 only. She, therefore, submitted that the learned Trial Judge rightly dismissed the suit of the plaintiffs. She pointed out that the learned Trial Judge has rightly held that since surrounding lands were not measured, the plaintiffs cannot be said to have proved that the defendants have encroached upon their lands. She, thus, submitted that the learned Trial Judge cannot be said to have committed any error on appreciation of evidence and if the learned Trial Judge had taken reasonable view on appreciation of evidence, the learned Appellate Judge was not justified to record contrary view on the basis of the same evidence without assigning cogent reasons which learned Appellate Judge has failed to do so. She, thus, urged to entertain this appeal and grant interim relief.
10. In reply, learned advocate Mr.Shital Patel for the respondents No.1 and 2 – original plaintiffs submitted that earlier, the lands were measured in the year 1999 and 2001 and the measurement was carried out by officer of D.I.L.R. He submitted that if the measurement of survey No.1258 was carried out by such officer and if it is found that the defendants were holding excess land in this very survey number, there is no reason to doubt the measurement carried out earlier. He further submitted that even pending the suit, the officer of D.I.L.R was appointed as Court Commissioner who measured the land in presence of panchas and panchnama was drawn. The appellants did not cooperate with the Commissioner appointed by the Court and the Court Commissioner being officer of D.I.L.R carried out the measurement of entire land being survey No.1258 in respect of the possession of the parties. The Court Commissioner has clearly found that the plaintiffs are in possession of the land admeasuring 10778 square meters which is less than their entitlement to the extent of 2577 square meters. The very same officer had measured the land of the defendants and found that the defendants are in possession of the land admeasuring 20487 square meters as against their entitlement of 18008 square meters. Thus, the defendants are, as per the measurement of the Court Commissioner, found to have held excess land to the extent of 2479 square meters. He pointed out that if on measurement of the land of survey No.1258, it is found that the defendants are holding excess land to the extent of 2479 square meters and when the plaintiffs are found to have held less land to nearly the same extent, no further proof is required to hold that the defendants have encroached upon the plaintiffs’ land. He submitted that there was no question of taking measurement of surrounding land because if the land within the four corners of survey No.1258 itself was measured and when it was found that the defendants have held excess land, there is no reason to believe that the defendants hold excess land from any other survey number. He, thus, submitted that the learned Trial Judge misdirected himself on irrelevant consideration of that since the lands of other survey numbers surrounding to the defendants’ land were not measured and committed serious error in holding that the defendants have not encroached upon the land of the plaintiff. He further submitted that the learned Appellate Judge was also rightly holding that the suit of the plaintiffs was within the time limit. The plaintiffs had filed suit immediately when the plaintiffs noticed that the defendants had encroached upon their lands and defendants having failed to set up their hostile title against the plaintiffs, there was no question of running of any time limit from the date, the original owner – predecessor-in-title of the plaintiffs held the land as owners. He submitted that learned Appellate Judge has not committed any error of misreading of the evidence nor the learned Appellate Judge can be said to have considered any irrelevant material for arriving at the conclusion that the defendants have encroached upon the land of the plaintiffs and that the suit of the plaintiffs is within the time limit, this Court may not interfere with the judgment and decree passed by the learned Appellate Judge in this Second Appeal as no substantial question of law has arisen for consideration by this Court.
11. I have perused the judgment and decree passed by both the Courts below. I have also perused the copies of the sale-deeds produced by the respondents No.1 and 2 with the plaint as also the map at Ex.82, panchnamas drawn by the Commissioner as well as the measurement taken by the officer of D.I.L.R.
12. It appears that the land of survey No.1258 was divided in two parts. The defendants are the owners of survey No.1258(b). The predecessors-in-title of the plaintiffs were the owners of survey No.1258(a). The plaintiffs purchased land admeasuring 13255 square meters by two different sale deeds between the year 1998 and 1999. It further appears that when the plaintiffs purchased the land, the plaintiffs got the land measured by the office of the D.I.L.R. The measurement carried out in the year 1999, is shown in the map at Ex.103 whereas the measurement carried out in the year 2001 is shown in the map prepared by D.I.L.R at Ex.135. It further appears that one more measurement was carried out pending the suit by the Court Commissioner who was also officer of the D.I.L.R and the map of such measurement is also produced at Ex.83 with panchnama at Ex.84. The panchnama clearly records that the measurement was carried out in presence of panchas where the plaintiffs remained present, but the respondents No.1 and 2 did not remain present. The Court Commissioner found that as against 13255 square meters, the plaintiffs are found to have been in possession of 10778 square meters of land. Thus, there was deficit of 2479 square meters found in the said measurement. It is further shown in the map and the panchnama that the defendants held 20487 square meters of the land as against their entitlement of 18008 square meters. It is required to be noted that this measurement by the Court Commissioner was only for the land in survey No.1258. The land falling within the four corner of survey No.1258 was measured and from such measurement, it is found that the defendants hold excess land of 2479 square meters. The learned Trial Judge, however, came to the conclusion that since the measurements of surrounding lands were not taken, the plaintiffs cannot be said to have proved that the excess land held by the defendants, is the land encroached of the plaintiffs. In my view, when the measurement of the entire land in survey No.1258 was carried out and when the defendants were found to have held excess land in this very survey number and when the plaintiffs were found to be in possession of less land nearly to the extent of the excess land held by the defendants, the measurement of surrounding land was not required. Learned Appellate Judge on consideration of documents at Ex.82, 83 and 84 as also the earlier measurement and on consideration of the measurement of entire land of survey No.1258 done by Court Commissioner rightly came to the conclusion that the defendants have encroached upon the land of the plaintiffs. With such finding of fact reached by the learned Appellate Judge, no interference is required by this Court as it is not pointed out that the finding of fact reached by the learned Appellate Judge is either on misreading of evidence or by taking into consideration irrelevant material on record.
13. Next is the question about the limitation. The learned Trial Judge has dismissed the suit of the plaintiffs on the ground that the suit of the plaintiffs was time barred. The plaintiffs have come out with the clear case that when the plaintiffs purchased land in the year 1999, they got measurement carried out by the office of the D.I.L.R. At the first instance, it was found that what was entitlement was not found in the measurement of the land. The measurement was then carried out in the year 2001 by the D.I.L.R office and at the time of second measurement also, it was found that the plaintiffs did not hold the area of the land as per their sale deeds. On physical verification, it was found that the plaintiffs held less land to the extent as stated above. This was a reason and cause for the plaintiffs to file the suit against the defendants because it was found that the defendants were holding excess land from survey No.1258. Simply because in past, the predecessor-in-title did not notice that the defendants had held the land in excess than their entitlement from survey No.1258, it was no ground to hold that the suit of the plaintiff was time barred. The plaintiffs acquired knowledge of excess land held by the defendants in survey No.1258 on the date when the measurement was carried out in the year 1999. Therefore, in my view, as rightly held by the learned Appellate Judge, the cause has arisen for the plaintiffs to file the suit only from the date of such measurement. Even apart from this, even if the defendants had held excess land from survey No.1258 before the lands were purchased by the plaintiffs, it is no proof that they had set up hostile title against the original owner and they had become the owners by adverse possession in respect of extra land held by them. If there was no hostile title against the original owners and if the encroachment on the land of the defendants could be known by the plaintiffs on getting the land measured in the year 1999, it cannot be said that the suit of the plaintiffs was time barred. Therefore, the contention as regards the suit of the plaintiffs is time barred cannot be accepted.
14. At this stage, it is required to be noted that out of six defendants, only two defendants have filed this Second Appeal. The encroachment on the lands of the plaintiffs is by all the defendants together, and, therefore, when more number of defendants are not aggrieved by the view taken by the learned Appellate Judge, the judgment and decree of learned Appellate Judge on this ground also is not required to be disturbed. In my view, what was required to be measured was the entire land of survey No.1258. If on measurement of land of survey No.1258, the expert officer found that what is held by the defendants, is in excess from their entitlement of survey No.1258 is no further proof was required. The contention of the learned advocate for the appellants that the learned Appellate Judge has not touched the issue as regards some portion of the land forming part of the pond on which the learned Trial Judge ultimately allowed the suit, cannot be accepted for the simple reason that the land in survey No.1258 was measured by the office of D.I.L.R and the measurement was also in respect of this very survey number. When the measurement was carried out, it was by the Court Commissioner who was also officer of the D.I.L.R. All these officers had measured survey No.1258 to find out the respective parties possession from such survey number. Even if small portion of the pond land was not found to have been measured, that would never be a case to hold that the defendants are not holding the excess land. The extent of land held in excess by the defendants is of 2479 square meters, which is not small portion of land. If the recitals of the sale deeds are considered, the predecessor-in-title just stated that some portion of the land had submerged in the pond and it was for plaintiffs to carry out level of the said land. But such recital did not convey at all that there was substantial portion of land of survey No.1258 which has gone into pond and which might re-merge to become part of the land of survey No.1258 and that could also be considered as a part of land of survey No.1258. What was intended to be conveyed by such recital in the sale deed was, that it was for the plaintiffs to make some small part of the lands as usable land. Therefore, in my view, when survey No.1258 was measured by the D.I.L.R, it was found that to a such large extent, defendants held excess land from this very survey No.1258. The learned Appellate Judge rightly came to the conclusion that the deficit and excess lands of the parties would match so as find encroachment in survey No.1258 itself.
15. In view of the above, I do not find that any substantial question of law suggested by learned advocate for the appellants warrants consideration at the hands of this Court. The appeal is, therefore, required to be dismissed. The same is accordingly dismissed. Notice is discharged. Interim relief stands vacated.
16. In view of the order passed in above mentioned Second Appeal, the Civil Application does not survive and hence, stands disposed of. Ad-interim relief granted earlier stands vacated. Notice is discharged.
(C.L.SONI, J.) vijay