Bombay High Court
Shri Sudam Sripati Takale vs Government Of India And Others on 8 July, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:30030 901 SA 185.15 WITH CAS 359.15.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.185 OF 2015
Shri. Sudam Sripati Takale (since deceased) ...Appellants
thru' LRs 1(a) Sou. Veena Shivaji Gavhane
& Ors.
Versus
Government of India ...Respondents
thru' Defence Department, New Delhi &
Ors.
WITH
CIVIL APPLICATION NO.359 OF 2015
IN
SECOND APPEAL NO.185 OF 2015
Shri. Sudam Sripati Takale (since deceased) ...Applicants
thru' LRs 1(a) Sou. Veena Shivaji Gavhane
& Ors.
Versus
Government of India ...Respondents
thru' Defence Department, New Delhi &
Ors.
Mr. Sandeep Phatak, Advocate for Appellants
Mr. A.R. Patil, Additional G.P., for the State.
Mr. Kedar B. Dighe, Advocate (through VC) for Respondents Nos. 1
to 3, Union of India
CORAM: MADHAV J. JAMDAR, J.
DATED : 8th July 2025
JUDGMENT:
1. Mr. Pathak, learned Counsel appearing for the Appellants submitted that substantial questions of law Nos. (i), (iii) and (v) as Page 1 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC contained in the Appeal memo of the Second Appeal are the substantial questions of law arising for consideration in this Second Appeal. The said substantial questions of law are as follows :-
(a) Whether the learned District Judge was right in forgetting to pass any order on the application made under Order 41 Rule 27 of the Civil Procedure Code, when such an application was made by the Appellant Plaintiff, and on such an application, the Learned District Judge has passed the order that the final order will be made on that application, at the time of final hearing of the Appeal? Whether this has vitiated the impugned Judgment and Order?
(b) Whether the learned District Judge has erred in not appreciating that in the light of the provision of Section 83 of the Evidence Act and in the absence of any challenge to the accuracy of the map, drawn on 16 th July 2007 at Exhibit 25 (in as much as the Respondents have not preferred any Appeal or Application for Nimtanas / super nimtanas against the map dated 16 th July 2007) and particularly when the said map dated 16 th July 2007 is exhibited at Exhibit 25, whether the learned District Judge has erred in insisting that in the absence of the examination of the surveyor, that map cannot be looked into? Whether the supporting examination in chief of Surveyor is absolutely necessary for the purpose of proving the exhibited map at Exhibit 25?
(c) Whether the learned District Judge has erred in putting the burden on the Plaintiffs when the burden of proving that the area of 7 acres and 18 gunthas was acquired, is on the Respondent Defendant and not on the Plaintiff?.Page 2 of 18
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2. In this Second Appeal, challenge is to the legality and validity of the Judgment and Decree dated 24th February 2011 passed by learned Civil Judge, Senior Division (On Deputation), and 6th Additional Judge, Small Cause Court, Pune in Special Civil Suit No.1496 of 2008 as confirmed by the learned Ad-hoc District Judge-3, Pune by Judgment and Decree dated 18th September 2014 in Civil Appeal No.353 of 2011.
3. The said Suit bearing Special Civil Suit No.1496 of 2008 has been filed for recovery of portion of land admeasuring 18 Gunthas allegedly encroached by Respondent Nos.1 to 3 i.e. the Defence Department of Government of India. The Suit has been dismissed by the learned Trial Court on the ground that the Plaintiffs have failed to prove the encroachment. As far as reliance of the Plaintiffs on the Map at Exhibit 25, it has been held by the learned Trial Court that the said Map is not proved as the Surveyor has not been examined and that the alleged encroached portion is the part and parcel of the land bearing Survey No.42/2, which is owned and possessed by the Union of India since its acquisition in the year 1942-43. The learned Appellate Court has confirmed the said Judgment and Decree of the learned Trial Court. The learned Appellate Court held that the Plaintiffs have failed to prove the Page 3 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC encroachment, survey map has not been proved by the Plaintiffs, the evidence of the Plaintiffs regarding encroachment is not believable.
4. The Appellants are legal heirs and representatives of the Deceased Plaintiff No.1/Appellant No.1. The Plaintiff Nos.2 to 5 i.e. Appellant Nos.2 to 5 before the learned First Appellate Court have not challenged the order of the learned First Appellate Court.
5. Before considering the above substantial questions of law, it is necessary to set out certain factual aspects :-
i. The Plaintiffs filed Regular Civil Suit No.356 of 2005 inter alia seeking survey of the subject land through Government Surveyor on the ground that the survey conducted through Private Surveyor by them shows the encroachment by the Defence Department of their land.
ii. Pursuant to the Order dated 20th January 2007 passed by the learned Joint Civil Judge, Senior Division, Pune in said Regular Civil Suit No.356 of 2005 measurement map which is produced in the present Suit at Exhibit-25 has been prepared.
iii. In fact, DW-1 - Dr. T. Arockianathan Defece Estate Officer in his deposition in the present Suit has specifically stated that no Page 4 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC notice of said Civil Suit No.356 of 2005 filed by the Plaintiffs was given to the Defence. Perusal of said map clearly shows that no notice has been given to the Defence Department of the Government of India even at the time of conducting survey of the subject land, on the basis of which the said map was prepared. The said map further shows that the encroachment has been shown in the said map as shown by the Plaintiffs. In fact, perusal of said map also shows that the said portion is part of the acquired portion by the Defence Department of Government of India.
iv. Thereafter, the Plaintiffs filed Suit bearing Special Civil Suit No.1496 of 2008 for recovery of portion of land admeasuring 18 Gunthas allegedly encroached by Respondent Nos.1 to 3 i.e. the Defence Department of Government of India. In the said Suit it is the contention raised by the Plaintiffs that the Survey No.42, Mouje Pimple-Nilakh, Aundh, Pune totally admeasuring 16 Acre 14 Gunthe was originally belonging to the Plaintiffs. Out of said total land, an area admeasuring 7 Acre 8 Gunthe was acquired by the Defence Department and the said acquired land was given Survey No.42/2. Balance portion of land admeasuring 9 Acre 6 Gunthe was given Survey No.42/1. The Plaintiffs measured said land through Private Surveyor and it was found that as per the area Page 5 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC shown on the 7/12 extract land of Survey No.42/1 was found less by 18 Gunthas and therefore the said Regular Civil Suit No.356 of 2005 was filed for Government measurement and on the basis of the said measurement Suit is filed.
v. In the said Suit the Defendants filed written statement dated 23rd February 2010 inter alia contending as follows :-
"The description of the alleged encroached portion of 18 Are land as given in para 1 of the plaint is not true and correct and therefore, denied by these defendants. These defendants submit that the land admeasuring 1579 Acres 28 Gunthas 12 Annas from village (1) Pimpale Saudagar, (2) Pimpale Gurav, (3) Pimpale Nilakh, (4) Sangvi and (5) Chinchwad, Tal. Haveli, District Pune which was initially requisitioned and subsequently were acquired for Defence purposes under Rule 75-A of Defence of India Rules, 1939 during the World War. The Notification No. MIL/567, dated 05.06.1946 was published to that effect in the Bombay Government Gazette, dated 13.06.1946 at Page 1941. Some additional lands were also subsequently notified under notification of even number, dated 10.06.1946 published in Bombay Government Gazette, dated 20.06.1946 Part I at page 2067. Three corrigenda to these notifications were also issued and published in the Bombay Government Gazette, dated 11.07.1948, 19.01.1949 and 01.12.1949 on payment of compensation of Rs. 6,18,869.12 to the land owners. The land bearing Survey No. 42. Part admeasuring 7 Acres 18 Gunthas and not 7 Acres 8 Gunthas as alleged by the plaintiff of village Pimpale Nilakh, was also acquired which is part and parcel of the above said acquisition. Therefore, these defendants are not encroaching any private land as alleged by the plaintiffs."Page 6 of 18
Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC vi. The Suit has been dismissed by the learned Trial Court on the ground that the Plaintiffs have failed to prove the encroachment. As far as reliance of the Plaintiffs on the Map at Exhibit 25, it has been held by the learned Trial Court that the said Map is not proved as the Surveyor has not been examined and that the alleged encroached portion is the part and parcel of the land bearing Survey No.42/2, which is owned and possessed by the Union of India since its acquisition in the year 1942-43. vii. All the Plaintiffs filed Civil Appeal No.353 of 2011 before the learned District Judge, Pune.
viii. The learned First Appellate Court has confirmed the said Judgment and Decree of the learned Trial Court. The learned First Appellate Court held that the Plaintiffs have failed to prove the encroachment, survey map has not been proved by the Plaintiffs, the evidence of the Plaintiffs regarding encroachment is not believable.
ix. The present Second Appeal is filed only by the Plaintiff No.1 i.e. Appellant No.1. The Plaintiff Nos.2 to 5 have not filed the Second Appeal. Thus, in effect the Plaintiff Nos.2 to 5 have accepted the decree of the dismissal of the Suit and also various concurrent findings recorded by the learned Courts. Page 7 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC
6. In view of the above factual position and the concurrent findings recorded by both the Courts, it is required to examine the substantial questions of law raised by Mr. Pathak, learned Counsel for the Appellant.
7. At the outset, it is required to be noted that all the Plaintiffs have come up with the case in the plaint that an area admeasuring 18 Gunthas out of land admeasuring 3H 60R of Survey No.42/1 has been encroached by the Respondent Nos.1 to 3 i.e. Defence Department of the Union of India. The challenge to the impugned Judgment and Decree of the learned Courts is only by the Plaintiff No.1 and Plaintiff Nos.2 to 5 have not challenged the impugned Judgment and Decree of the learned First Appellate Court. Thus, in effect the Plaintiff Nos.2 to 5 have accepted the concurrent findings of both the Courts that the Plaintiffs failed to prove that there is any encroachment by the Respondents/Defendants and therefore if this Second Appeal is allowed, it has the effect of having two conflicting decrees in the same Suit. One dismissing the Suit as regards Plaintiff Nos.2 to 5 and another decreeing the Suit with respect to the same property as regards Plaintiff No.1. If the Second Appeal is allowed, then the effect will be as follows :- Page 8 of 18
Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC i. The Special Civil Suit No.1496 of 2008 filed by the Plaintiff Nos.2 to 5 stands dismissed by the learned Trial Court as confirmed by the learned First Appellate Court with concurrent findings that the Plaintiffs have failed to prove the encroachment, survey map has not been proved by the Plaintiffs, the evidence of the Plaintiffs regarding encroachment is not believable.
ii. As far as the Plaintiff No.1 is concerned, the same Special Civil Suit No.1496 of 2008 stands decreed with the findings that the Plaintiffs have proved the encroachment as per the survey map.
Thus, there will be two inconsistent and contradictory decrees passed in the same Suit. In the context of Order 22 Rule 4 of the Code of Civil Procedure, 1908 ("CPC"), the Supreme Court in the case of Sunkara Lakshminarasamma v. Sagi Subba Raju 1, has held that the court cannot be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees the court has no alternative but to dismiss the appeal as a whole. If on the other hand, the success of the appeal would not lead to conflicting decrees, then there is no valid reason why the 1 (2019) 11 SCC 787 Page 9 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC court should not hear the appeal and adjudicate upon the dispute between the parties. Thus, this Second Appeal is required to be dismised on this gorund alone. However, this Court has also examined the substantial questions of law raised by the Appellants.
8. The first substantial question of law is that the learned District Judge has not passed any Order on the application under Order 41, Rule 27 of CPC. At this stage, it is required to note that the said application has not been produced by the Appellants. This matter was heard completely yesterday and in fact Mr. Sandeep Pathak, learned Counsel of the Appellant, on instructions, submitted that the Appellants are not pressing the said substantial question of law concerning non-consideration of application filed under Order 41 Rule 27 of CPC. However, in view of the conduct of the Plaintiffs throughout in these proceedings, this Court adjourned the matter on the next day i.e. today and asked Mr. Pathak, learned Advocate to file Affidavit of one of the Appellants to keep on record that the Appellants are not pressing the said substantial question of law. However, Mr. Pathak, learned Advocate today submits that the Appellants have instructed him to take adjournment and the Appellants will now apply for certified copy of entire proceeding of the learned Appellate Court and then the Page 10 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC Appellants will consider making the said statement of not pressing the said substantial question of law.
9. However, it is required to be noted that the impugned Judgment and Decree challenged in this Second Appeal, is dated 18th September 2014. The Second Appeal has been filed on 12 th November 2014 and till date the same is pending for admission. It is further required to be noted that the said substantial question of law concerning application filed under Order 41 Rule 27 is specifically set out in the Appeal Memo and therefore, it cannot be believed that the Appellants are not having copy of the said application. As noted above, yesterday, Mr. Pathak, learned Counsel for the Appellants, submitted that the Appellants are not pressing the first substantial question of law, however, today he is seeking time. At this stage, it is required to be noted that the learned Appellate Court has observed that the Plaintiffs have suppressed from the Court relevant 7/12 extracts. Thus, it is clear that this is a case where the Appellants to grab valuable property of the Union of India i.e. of Defence which has been acquired before 1950 have filed these proceedings and the earlier Suit baering Regular Civil Suit No.356 of 2005 and in the said earlier Suit obtained order without giving notice to the Respondent Nos.1 to 3 and also plan Page 11 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC (Exhibit-25) was prepared without giving notice to the Respondent Nos.1 to 3.
10. It is also required to be noted that the Appellants have filed Additional Paper Book in this Second Appeal in June 2025. In the said Additional Paper Book also the Appellants have not annexed said application filed under Order 41 Rule 27 of CPC. In any case the Appellants have failed to produce any document to substantiate the First Substantial Question of law. The conduct of the Appellants show that the said evidence proposed to be produced under Order 41, Rule 27 of CPC may not be of any significance. In any case, as noted herein above only Plaintiff No.1 has filed the present Second Appeal and allowing the present Second Appeal will result in passing the conflicting decrees in the same Suit.
11. As far as the second substantial question of law is concerned, the same is on the basis of survey map produced by the Appellants at Exhibit 25. The same is prepared on the basis of survey conducted on 16th July 2007. It is the submission of Mr. Pathak, learned Advocate that as per Section 83 of the Indian Evidence Act, 1872 ("Evidence Act"), the said map is to be read in evidence and therefore, both the Courts have committed an error in observing Page 12 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC that the Plaintiffs have failed to prove the said map. It is further submission of Mr. Pathak, learned Counsel that the said map has not been challenged by the Respondents and in fact the Respondents have accepted the same.
12. In this behalf, it is required to be noted that the said map was drawn pursuant to the Order dated 20 th January 2007 passed by the learned Joint Civil Judge, Senior Division, Pune in Regular Civil Suit No.356 of 2005. In fact, DW-1 - Dr. T. Arockianathan Defece Estate Officer in his deposition has specifically stated that no notice of said Civil Suit NO.356 of 2005 filed by the Plaintiffs was given to the Defence. Perusal of said map clearly shows that no notice has been given to the Defence Department of the Government of India at the time of Survey on the basis of which the said map was prepared. The said map further shows that the encroachment has been shown in the said map as shown by the Plaintiffs. In fact, perusal of said map also shows that the said portion is part of the acquired portion by the Defence Department of Government of India. In this background of the matter, it is required to be noted that both the Courts have concurrently held that the Appellants-Plaintiffs have failed to prove the said map. Page 13 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC
13. Before the learned Trial Court as well as before the learned First Appellate Court, reliance is placed on Section 83 of the Evidence Act. Mr. Pathak, learned Counsel also relies on Section 83 of the Evidence Act and submits that the said map has to be read in evidence and it is not necessary to prove the said map. The said Section 83 of the Evidence Act, on which reliance is placed is as follows:-
"83. Presumption as to maps or plans made by authority of Government.
The Court shall presume that maps or plans purporting to be made by authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate."
Thus, what Section 83 of the Evidence Act contemplates is that the Court shall presume that maps or plans purporting to be made by authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.
14. In this case, the plan has been prepared for the purpose of showing the alleged encroachment. As per Section 83 of the Evidence Act it is very clear that the said plan is required to be proved to be accurate by the Plaintiffs. Admittedly, the Plaintiffs Page 14 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC have not examined the said surveyor and therefore there is substance in the concurrent findings recorded by both the Courts that the Plaintiffs have failed to prove the encroachment and the accuracy of the said map (Exhibit-25).
15. Mr. Pathak, learned Counsel submits that the Respondents i.e. the Defence Department has not challenged the said survey map and therefore, the same is binding on them. In this behalf, it is significant to note Paragraph 5 of Affidavit in lieu of examination- in- chief dated 28th January 2011 of Dr. T. Arockianathan, Defence Estate Officer, Pune Circle, Pune. The said Paragraph 5 reads as under:-
"5. I further state that the contents in para No.3 of the plaint, the same are not true and correct hence denied. I state that the office of the defendants are not aware of the Civil Suit No. 356/2005 filed by the plaintiffs. As regards the map of the survey carried out by the defendant No 5 vide M.R. No. 2077, dated 16.07.2007, it indicates that the land shown in triangular shape is marked as per the occupation shown by the plaintiffs and as such the same cannot be relied upon to prove the plaintiff's claim. I further state that the entries made in the 7/12 extract in respect of Survey No.42 are not based on the acquisition record and hence cannot be accepted as a proof."
(Emphasis added) Page 15 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC
16. In said Paragraph 5 of Evidence Affidavit, a reference is to the Paragraph 3 of the plaint is made. The relevant portion of Paragraph 3 of the plaint is as follows:
"३) वादी यांनी त्यां च्याकडे भूसंपादन झाले नंतर आपला स.नं . ४२/१ ची खाजगी मोजणी केली असता, त्यांना कळु न आले की, त्यां च्याकडील क्षे = ७/१२ iz माणे कमी भरले व त्यांचा काही भाग सं रक्षण खात्याकडे अनाधि(कृतपणे गे ला."
English translation of above is as under:-
"3) After the land was acquired, when the Plaintiff got carried out private survey of his land bearing Survey No.42/1, he found that the area of the land remained with him was found less than the area mentioned in the 7/12 extract and that some area of the said land had been transferred to the Ministry of Defence, unauthorizedly."
17. The Defendant Nos. 1 to 3 have filed written statement dated 23rd February 2010 and the said written statement has also been verified by Dr. T. Arockianathan. In said written statement in Paragraph 5, it is stated as under:-
"5. With reference to the contents in para 3 of the plaint, these defendants submit that the same are not true and correct hence denied by these defendants. These defendants submit that they are not aware of the Civil Suit No. 356/2005 filed by the plaintiffs. As regards the map of the survey carried ouit by the defendant No.5 vide M.R. No. 2077, dated 16.07.2007 it indicates that the land shown in triangular shape is marked as per the occupation shown by the plaintiffs and as such the same cannot be relied upon to prove the plaintiffs' claim. These defendants further submit Page 16 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 ::: 901 SA 185.15 WITH CAS 359.15.DOC that the entries made in the 7/12 extract in respect of the Survey No. 42 are not based on the acquisition record and hence cannot be accepted as a proof."
(Emphasis added)
18. Thus, in fact what is stated in the written statement and in the Evidence Affidavit filed on behalf of the Respondent Nos. 1 to 3 i.e. Union of India is that the Union of India are not aware of the Civil Suit No. 356 of 2005 filed by the Plaintiffs and the occupation shown on the said map is as shown by the Plaintiffs and therefore, same cannot be relied on to prove the claim.
19. Thus, by no stretch of imagination, it can be said that the Defendant Nos.1 to 3 i.e. Union of India have accepted the said map. Accordingly, there is no substance in any of the contentions raised by the Appellants.
20. The learned Trial Court in Paragraph 11 has recorded finding that even if the map Exhibit-25 is seen, it reveals that the alleged encroached portion is shown to be part and parcel of the land Survey No.42/2, which is owned and possessed by the Union of India since its acquisition in the year 1942-43. The said finding is also confirmed by the learned Appellate Court. Thus, there is no substance in the second substantial question of law raised by the Appellants.
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21. As far as third substantial question of law is concerned, it is the submission of Mr. Pathak, learned Counsel for the Appellants- Plaintiffs that the burden is on the Respondents-Defendants that they have acquired said encroached portion. In fact, it is the duty of the Plaintiffs to prove their case. It is his submission that the land which is encroached is not acquired. In fact, the evidence on record shows that the land is acquired. In any case, if it is the contention of the Plaintiffs that it is their own land and the said land has been encroached by the Defence Department, then burden is on the Plaintiffs to prove ownership of their land. Both the Courts have concurrently held that the Plaintiffs have not proved their case. Thus, there is no substance even in the third substantial question of law raised by the Appellants.
22. Accordingly, the Second Appeal is dismissed with costs of Rs.25,000/-, to be paid to the Respondent Nos.1 to 3.
23. As the Second Appeal is dismissed, nothing survives in the Civil Application and the same is also disposed of.
BHALCHANDRA GOPAL DUSANE (MADHAV J. JAMDAR, J.) Digitally signed by BHALCHANDRA GOPAL DUSANE Date: 2025.07.19 18:57:33 +0530 Page 18 of 18 Dusane ::: Uploaded on - 19/07/2025 ::: Downloaded on - 26/07/2025 04:00:57 :::