Pandhari Tukaram Gaikwad & Anr. vs Zibla Raghoba Davare

ADMIT.

Heard finally by consent of learned counsel for the respective parties.

This second appeal is directed against the judgment and decree dated 13/11/2024 passed by the learned District Judge-1, Kelapur, District Yavatmal in Regular Civil Appeal No. 06/2014, whereby the appeal preferred by the appellants came to be dismissed and the judgment and decree passed by the learned Civil Judge, Junior Division, Wani in Regular Civil Suit No. 65/2007 came to be confirmed.

This Court, vide order dated 09/12/2025, issued notice to the respondent, on the following substantial question of law:-

The dispute concerns the agricultural lands situated at Patharpur, Taluka Wani, District Yavatmal, forming part of original Survey No. 5. The respondent claimed ownership over Block No. 13, ad-measuring 3H 22 R, whereas the appellants are owners and cultivators of adjoining lands bearing Block Nos. 14/1 and 14/2, which were purchased by the appellants in the year 1988.

According to the appellants, at the time of purchase of their respective lands from Natthu S/o Kashinath Davare, the lands were physically identified and demarcated by an earthen boundary bund measuring approximately 7 to 8 feet in width. It is their case that the said boundary continued to exist thereafter and was known to the adjoining landholders. The appellants claim to have remained in continuous, peaceful and uninterrupted possession and cultivation of their respective lands since the year 1988.

The respondent-plaintiff thereafter instituted Regular Civil Suit No.65/2007 alleging that the appellants had encroached upon approximately 1H 17R of his land. The plaint did not specify the date on which the alleged encroachment was committed nor did it disclose any tentative period during which the appellants allegedly crossed the boundary and came into possession of the disputed portion. The respondent's case is that the alleged encroachment came to his knowledge upon measurement of the property conducted on 24.04.2007, which date has been stated as the date giving rise to the cause of action.

Learned counsel for the appellants further submitted that, even according to the Respondent's case, he merely suspected encroachment and thereafter got the land measured on 24/04/2007. The alleged encroachment was thus detected only upon measurement. However, they have not pleaded when they crossed the boundary or during which period the alleged encroachment came into existence. Further it is contended that the date on which the Respondent acquired knowledge of the alleged encroachment cannot automatically be treated as the date on which the encroachment was committed.

It was explained that the distinction assumes considerable importance when the appellants have consistently asserted that their possession commenced in the year 1988 and continued thereafter. It is submitted that the order dated 06/04/2023 passed by the District Superintendent, Land Records, Yavatmal directing re-measurement and verification was a material circumstance which required consideration. According to learned counsel, where the appellants have asserted possession since 1988, and the Respondent claims to have discovered the alleged encroachment only upon measurement in 2007, the absence of any pleading regarding the period during which the alleged encroachment was committed assumes substantive significance. Reliance is also placed upon the order dated 06.04.2023 passed by the District Superintendent, Land Records, Yavatmal, directing re-measurement and verification of Survey No.5 and the relevant subdivision records. It is submitted that the said circumstance assumes significance in view of the appellants' consistent case regarding the boundary and their possession since 1988.

Learned counsel for the appellants, in support of his contentions, relied on the following judgments:-

The consistent principle emerging from these judgments is that a respondent - plaintiff seeking recovery of possession must specifically plead and establish his title or previous possession, the date and manner of dispossession or encroachment, and the basis of the defendant's alleged illegal possession. In the absence of such foundational pleadings, evidence cannot be relied upon to create a cause of action. A subsequent measurement or discovery of the extent of encroachment does not, by itself, constitute a fresh cause of action or extend limitation. The decisions further reiterate that the plaint must be meaningfully read as a whole and that clever drafting cannot be employed to create an illusory cause of action or circumvent limitation.

It is further contended that the learned First Appellate Court erred in holding that the subsequent measurements conclusively established encroachment, without considering that the respondent's plaint did not disclose when the alleged encroachment was actually committed, the respondent having merely pleaded that he acquired knowledge of the alleged encroachment upon measurement on 24/04/2007, for supporting the claims the learned counsel submits that the date of knowledge cannot automatically be treated as the date of encroachment, particularly when the appellants asserted possession since 1988, and therefore, omission to plead the tentative period of encroachment materially affects the cause of action, limitation and the burden of proof.

Reliance is placed upon the principles governing limitation in the case of Khatri Hotels (P) Ltd. v. Union of India, (2011) 9 SCC 126, wherein the Hon’ble Supreme Court reiterated that the right to sue accrues when there is a clear and unequivocal threat to the plaintiff's right, and upon the case of Ravinder Singh v. Financial Commissioner, Cooperation, Punjab, (2008) 7 SCC 663, on the requirement that a party seeking possession based on title must establish the relevant facts constituting the cause of action.

However, it was stated that the learned Courts below failed to properly appreciate the objections regarding the boundary and absence of the original/pre-consolidation survey records, particularly when the District Superintendent, Land Records, Yavatmal, by order dated 06/04/2023, directed re-measurement and verification of Survey No.5 and the relevant subdivision records. Thus, learned counsel submitted that the subsequent survey measurements could not cure the absence of pleadings regarding the period of alleged encroachment and, therefore, the substantial question of law deserves to be answered in favour of the appellants.

Per contra, the Learned counsel for the respondent would submit that the appellants are seeking to place undue emphasis on the absence of a specific date on which the alleged encroachment was committed. It is submitted that the respondent's case is founded upon the identification and measurement of the respective lands and the finding that the appellants had a portion of the land belonging to the respondent. The mere fact that the exact date on which the encroachment came to be made was not stated in the plaint would not, by itself, dislodge the respondent's claim, particularly when the alleged encroachment came to light upon measurement of the lands.

It is further submitted that the appellants' assertion that they have had their lands since 1988 cannot, in the absence of proof that such possession extended to the disputed portion, be treated as conclusive of their entitlement thereto. The fact that the appellants purchased Block Nos. 14/1 and 14/2 in the year 1988 is not in dispute; however, the extent and identity of the land actually conveyed to them would have to be determined with reference to the title documents and the boundaries of the respective lands. Mere long-standing possession of the lands purchased by the appellants cannot confer upon them a right over any portion of the respondent's adjoining land.

He, therefore, raised a contention on behalf of the appellants do not furnish any ground to interfere with the findings recorded by the Courts below and that the appeal deserves to be dismissed.

At the outset, it is necessary to note that the plea of limitation was neither specifically pleaded by the appellants before the Courts below nor was any issue in that regard framed. The appellants have also not formulated any independent substantial question of law on limitation in the present Second Appeal. The relevance of the date 24.04.2007, therefore, falls for consideration primarily in the context of the substantial question of law framed by this Court, namely, whether the absence of the exact date or tentative period of alleged encroachment renders the suit itself non-maintainable.

The question, therefore, requires consideration in the context of the distinction between the date on which an encroachment is physically made and the date on which such encroachment becomes ascertainable. Where the parties are themselves uncertain regarding the true boundary and the disputed portion can be identified as forming part of one party's land only upon measurement, the date of such measurement may assume significance for determining the date on which the alleged encroachment became ascertainable and the consequent right to seek appropriate relief. Herein, the learned counsel of appellants have relied on several authorities contending that in case of possession or adverse possession, cause of action arose on the date when the defendant is in adverse possession or from the date when he encroached the property. The answer to this question would depend upon the nature of the boundary dispute, the pleadings of the parties and the evidence regarding the ascertainment of the disputed portion.

It is well settled that a plaintiff seeking recovery of possession on the ground of encroachment is required to plead the material facts constituting the alleged encroachment and the basis of his claim to possession. The purpose of pleadings is to enable the opposite party to understand the case which he is required to meet. At the same time, the absence of an exact date cannot be treated as fatal in every case irrespective of the nature of the dispute. Where the controversy itself concerns the identity of the boundary and the disputed portion could be ascertained only upon a proper measurement, the question has to be considered in the factual context of the case.

In the case of Krishnamurthy S. v. Sethur V.O.V. Narasimha Setty and Others, AIR 2007 SC 1788, the Supreme Court has emphasised the necessity of establishing the date or approximate period from which adverse possession is claimed to have commenced. However, about the circumstances in which the date of commencement of adverse possession may be reckoned from the date of measurement, reference may be made to the case of Yesu Sadhu Nimagre and Others v. Kundalik Babaji Nimagre and Another, 1977 Mh.L.J. 130, wherein the suit was for possession of an allegedly encroached portion of land and the defendant denied the plaintiff's title to the disputed strip, claiming it to be part of his own land. Upon measurement, the disputed strip was found to form part of the plaintiff's land, and till such measurement, neither party was aware whether the disputed portion formed part of the plaintiff's land or the defendant's land and both were uncertain regarding the true boundary.

The said principle, however, cannot be understood to mean that the date of measurement is, in every case, the date on which physical encroachment was committed. Measurement may establish the identity and extent of the disputed portion and may also establish when the alleged encroachment became ascertainable, but it does not necessarily establish when the physical act of encroachment took place.

The decision indicates that where the parties were genuinely unaware of the true boundary and the fact of encroachment could be ascertained only upon measurement, the date of measurement may furnish the starting point for determining the commencement of adverse possession. At the same time, a plea of adverse possession is essentially a plea founded upon facts and the necessary factual particulars must be specifically pleaded and thereafter proved; thus, the date of measurement can be treated as the relevant date only where the pleadings and evidence establish that the parties were, in fact, uncertain about the boundary until such measurement.

The distinction between the date of physical encroachment and the date on which the encroachment became ascertainable is therefore material. Where the evidence establishes that the parties were genuinely uncertain regarding the true boundary and the disputed portion could be identified only upon measurement, the date of such measurement may assume significance. Whether such principle applies in a particular case must, however, depend upon the pleadings and evidence concerning the boundary, the physical features of the land and the circumstances in which the disputed portion came to be identified.

In the present case, the appellants have consistently asserted that they purchased Block Nos.14/1 and 14/2 in the year 1988 and that their possession commenced from the date of purchase. They have also relied upon the existence of an earthen boundary bund and the physical features of the land. The respondent, on the other hand, has pleaded that the alleged encroachment came to his knowledge upon measurement conducted on 24.04.2007. Thus, the dispute is not merely concerning the factum of possession but essentially concerns the true boundary between the adjoining lands and whether the possession of the appellants extended beyond the lands purchased by them into Block No.13 belonging to the respondent.

The subsequent order dated 06/04/2023 passed by the District Superintendent, Land Records, Yavatmal directing re-measurement and verification of the relevant survey and subdivision records has also been considered. The said order, by itself, does not establish that the measurements relied upon by the Courts below were erroneous or that the encroachment found by them did not exist. At the highest, the said order indicates that verification of the relevant survey records was considered necessary. In the absence of any demonstrated finding in the said order displacing the measurements and findings relied upon by the Courts below, the same cannot, by itself, furnish a ground for interfering with the concurrent findings of fact in the present Second Appeal.

Since the substantial question of law has to be considered keeping in view the distinction between the date of discovery or measurement and the date or period of actual encroachment. It is true that ordinarily a plaintiff seeking recovery of possession on the ground of encroachment is expected to plead the material facts constituting the cause of action, including the circumstances in which the defendant is alleged to have entered upon the plaintiff's property. However, the absence of an exact date or a specific period of encroachment cannot, by itself, render the suit not maintainable, particularly where the very identity of the encroached portion and the true boundary between the properties were required to be ascertained by measurement. In such circumstances, the date of measurement may furnish the relevant point from which the alleged encroachment became ascertainable, and the plaintiff's right to seek appropriate relief crystallised.

In the facts of the present case, the respondent has specifically pleaded that the alleged encroachment came to his knowledge upon measurement conducted on 24.04.2007. The exact date on which the physical encroachment, if any, came into existence has not been stated. However, considering the nature of the boundary dispute and the fact that the identity and extent of the disputed portion were required to be ascertained by measurement, the absence of an exact date or tentative period of physical encroachment cannot, by itself, render the suit non-maintainable.

The learned Trial Court, upon appreciation of the oral and documentary evidence and the measurement material, recorded a finding that the appellants had encroached upon the respondent's land. The learned First Appellate Court, upon independent re-appreciation of the evidence, concurred with the said finding. Thus, there are concurrent findings of fact recorded by both the Courts below regarding the existence and extent of the alleged encroachment. The learned counsel of appellants have not demonstrated that such findings are perverse, based on no evidence, or arrived at by ignoring any material evidence so as to warrant interference in exercise of jurisdiction in present Appeal.

The decision in Yesu Sadhu Nimagre and Others v. Kundalik Babaji Nimagre and Another, 1977 Mh.L.J. 130, is of significance in the peculiar facts of the present case. Where the parties themselves were uncertain regarding the true boundary and the disputed portion could be identified as belonging to one party only upon measurement, this Court recognised that the date of measurement could assume significance in determining the commencement of adverse possession. The said principle does not mean that measurement, in every case, constitutes the date on which encroachment was physically committed. It only recognises that where the alleged encroachment could not earlier be ascertained because of uncertainty regarding the boundary, the date of measurement may be relevant for determining when the alleged encroachment became ascertainable.

The contention raised by learned counsel of appellants that the absence of a specific pleading regarding the tentative period during which the encroachment was committed is, by itself, fatal to the suit cannot therefore be accepted. The requirement of pleading the material facts cannot be applied in isolation from the factual nature of the dispute. Where the encroachment itself becomes ascertainable only upon measurement, the date of measurement assumes legal significance. In the present case, the respondent's assertion that the alleged encroachment was detected upon measurement dated 24.04.2007, coupled with the subsequent measurements and the concurrent findings recorded by the Courts below regarding the existence and extent of the encroachment, constitutes sufficient factual foundation for maintaining the suit. The exact date on which the alleged encroachment physically came into existence cannot, in the peculiar circumstances of the present case, be insisted upon as a condition precedent for maintaining the suit.

The question of limitation arises only incidentally in considering whether 24.04.2007 can be regarded as the relevant date for the plaintiff's pleaded cause of action. The learned counsel of appellants have not demonstrated that the concurrent findings are perverse, based on no evidence, based on inadmissible evidence, or arrived at by ignoring material evidence. Therefore it was not stated that, before the measurement dated 24.04.2007, the respondent had an unequivocal and ascertainable cause of action in respect of the particular portion alleged to have been encroached upon. The suit instituted thereafter cannot, in the facts of the present case, be held to be barred by limitation merely because the plaint does not specify the precise date on which the encroachment was physically committed.

The subsequent order dated 06.04.2023 directing re-measurement may have relevance to the evidentiary aspects of the measurement, but it does not, in the facts of the present case, dislodge the concurrent findings of fact recorded by the Courts below. Both the Courts below have, upon appreciation of the evidence and the measurement material, concurrently found the alleged encroachment to be established. Such concurrent findings of fact cannot be interfered with in a Second Appeal merely because another view of the evidence may be possible.

In view of the foregoing discussion, the substantial question of law is answered in the negative, holding that the suit for removal of encroachment is not rendered non-maintainable merely because the plaint does not state the exact date or tentative period during which the encroachment was committed, when the facts and circumstances establish that the alleged encroachment became ascertainable upon measurement and the cause of action was asserted to have arisen on 24.04.2007. The learned Trial Court, after appreciation of the evidence, recorded a finding in favour of the respondent regarding the encroachment, and the learned First Appellate Court, upon independent re-appreciation of the material on record, has concurred with the said finding. The said concurrent findings are neither shown to be perverse nor based on evidence. Consequently, no ground is made out for interference with the judgments and decrees of the Courts below in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.

Hence, the appeal stands dismissed.

The judgment and decree dated 13/11/2024 passed by the learned District Judge-1, Kelapur, District Yavatmal in Regular Civil Appeal No. 06/2014 and the judgment and decree passed by the learned Civil Judge, Junior Division, Wani in Regular Civil Suit No. 65/2007 are hereby confirmed.

Pending application(s), if any, stand(s) disposed of.