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

owned by the defendant was 4.23 hectares.  A re­survey was done in

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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.

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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.

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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.

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………………………J. (Deepak Gupta)

……………………….J. (Aniruddha Bose)

New Delhi September 17, 2019

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