Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2452 OF 2010
RAMBHAU GANPATI NAGPURE …APPELLANT(S)
VERSUS
GANESH NATHUJI WARBE & ORS. …RESPONDENT(S)
J U D G M E N T
DEEPAK GUPTA, J.
This appeal is directed against the final judgment and order
dated 28.01.2009 passed by the High Court of Judicature at Bombay,
Nagpur Bench whereby the second appeal filed by the appellant was
dismissed on the ground that no substantial question of law arose.
2. Brief facts of the case are that the parties owned agricultural
land adjoining each other in Mouza Sirsi. The plaintiffs (Respondents
before us) filed a suit claiming that the ancestral land of the plaintiffs
was about 6.07 hectares, and to the south of the field of the plaintiffs
lay the defendant’s (Appellant before us) field and the area of the land
Signature Not Verified
owned by the defendant was 4.23 hectares. A resurvey was done in
Digitally signed by
RACHNA
Date: 2019.09.17
17:54:17 IST
Reason:
1
the year 1991 and in the resurvey the land of the defendant was
shown to be 5.3 hectares, which was in excess by 1.07 hectares.
3. Thereafter, the plaintiffs filed an application before the Sub
Divisional Officer (S.D.O. for short), Umrer, and got the field re
measured as per the old record. Thereafter, the S.D.O. by his order
dated 31.07.2000 directed the Taluka Land Inspector for correction of
revenue record whereby the original position of the field was restored.
In the revenue record, the area and maps of the plaintiffs’ field as well
as 7/12 extract of the field of plaintiffs was corrected.
4. The case of the plaintiffs was that the defendant erected wire
fencing, encroached upon the land of the plaintiffs and, therefore, the
suit was filed for possession of the land encroached by the defendant.
5. It would be pertinent to mention that an appeal was filed by the
defendant against the order of the S.D.O. before the Settlement
Commissioner who remanded the case to the S.D.O. for fresh inquiry
and fresh order. The Superintendent of Land Record of Nagpur
verified the spot on 27.11.2002 and submitted a proposal report to the
S.D.O. Since the order passed was against the plaintiffs, therefore they
had brought this suit for possession.
2
6. On 03.01.2005 the Civil Judge decreed the suit and held
plaintiffs to be entitled to possession and directed the defendant to
deliver the possession of the disputed land. Defendant filed a regular
civil appeal challenging this order and the appeal was dismissed by
the District and Sessions Judge on 03.05.2008. Challenging this, the
appellant filed a second appeal which was dismissed by the High
Court on 28.01.2009. All the courts have held that the defendant has
encroached upon the land of the plaintiffs. These are pure finding of
facts which cannot be interfered with in these proceedings.
7. It has been strenuously urged by the learned counsel for the
appellant that, in fact, the boundary between the two fields contained
trees and this was proved by the evidence on record. We are not
impressed with this argument. If there was a boundary with trees,
how can that be replaced with a fence? Another important fact is that
despite repeated queries, learned counsel for the appellant could not
explain as to how the land in their ownership and possession which
prior to the resurvey was only 4.23 hectares got increased to 5.3
hectares. The only explanation given was that to straighten the
boundary some land was exchanged with some relatives. No evidence
was placed on record to prove this.
3
8. Two legal issues have been raised. The first is that the map has
not been proved in accordance with Section 83 of the Indian Evidence
Act, 1872. It is urged that the plaintiffs have not proved the map. On
going through the records, we find that the map was prepared on the
directions of the S.D.O. No doubt, after the map was prepared, the
order of the S.D.O. directing for preparation of the map was set aside,
but that will not affect the evidentiary value of the map which depicts
the position of the boundaries as per the holdings of the parties. This
map was prepared by the Revenue authorities and not by the
plaintiffs/respondents.
9. The next objection raised is that under Section 138 of The
Maharashtra Land Revenue Code, 1966 the suit is not maintainable.
We find that this objection is totally without any merit. In fact,
Section 138 clearly provides that a civil suit can be instituted against
any order of ejectment. No provision has been pointed out where the
jurisdiction of the civil court has been specifically barred.
10. In view of the above discussions, we find no merit in the appeal
and the same is dismissed. Application(s), if any, shall also stand
dismissed.
4
………………………J.
(Deepak Gupta)
……………………….J.
(Aniruddha Bose)
New Delhi
September 17, 2019
5