ORAL JUDGMENT: This Second Appeal is at the instance of the defendant against whom a decree was passed by the trial Court and confirmed by the first appellate Court. The parties shall be hereinafter referred to as plaintiff and defendant. 2. The facts giving rise to the appeal are as follows: Plaintiff is the owner of field Survey no. 58/1 5.29 gunthas land of village Bhamod. Defendant is the owner of field Survey No. 58/2 which lies to the south of the plaintiff's field. The plaintiff contends that defendant destroyed the boundary i.e. Dhura in between plaintiff's field and that of the defendant and has committed an encroachment to the extent of 32 gunthas. Plaintiff submits that he got his field measured on 24.02.77 and the Measurer found that the defendant has committed an encroachment to the extent of 32 gunthas. 3. It is the contention of the plaintiff that the plaintiff's predecessor in title namely Punjaji cultivated 5.29 gunthas of land. Punjaji sold the same acrage of land to Mahadeo. This Mahadeo was in cultivating possession of 5.29 gunthas of land. It is contended that therefore Mahadeo had a possessory title over the suit property and he could therefore convey title in favour of the plaintiff to that extent. 4. Original defendant filed Written Statement. He admitted that the plaintiff is the owner of Survey No. 58/1. He also admits that his field lies to the south of the plaintiff's field and he is the owner thereof. He denied that he has encroached upon the plaintiff's land to the extent of 32 gunthas. He also denied that the boundary i.e. Dhura between the two fields was destroyed by him any time. The main contention of the defendant is that the plaintiff is the owner of 5 acres of land only. He contends that his father Bhaskar had sold 5 acres of land only to Punjaji the predecessor in title of plaintiff's vendor. He submits that plaintiff is therefore owner of 5 acres land only and the defendant has not committed any kind of encroachment. 5. Learned Judge of the trial Court found that the plaintiff was owner of 5.29 gunthas and defendant had committed encroachment to the extent of 32 gunthas. Holding so he decreed the suit. Defendant being aggrieved by that finding preferred an appeal before the District Judge. 5. Learned Judge of the trial Court found that the plaintiff was owner of 5.29 gunthas and defendant had committed encroachment to the extent of 32 gunthas. Holding so he decreed the suit. Defendant being aggrieved by that finding preferred an appeal before the District Judge. District Judge concurred with the finding of the trial Court and dismissed the appeal. 6. Appeal was admitted by this Court treating grounds [xxiv], [a], [b], [c], [d], [e] as substantial questions of law. They are as follows: xxiv] Total approach of both the Courts below in decreeing the suit of respondent without any clinching, convincing evidence is totally illegal and unwarranted. a) Whether the findings of facts that the respondent is owner of 5 acres and 30 gunthas are perverse particularly when Punjaji (through whom respondents claims to have purchased the suit land and further claims to have cultivated 5 acres 29 gunthas of land, thereby claiming possession title etc) has in clear terms stated that he purchased, cultivated and subsequently sold only 5 acres of land to Mahadeo? b) Whether the courts below have improperly rejected the evidence of D. W. 2 Punjaji around whom the case revolves? c) Whether the findings of fact that the appellants encroached upon 32 gunthas of land, are perverse particularly when the P. W. 2 and 3 have given contradictory statement about the destruction of Dhura between the fields of parties and further when the evidence of P. W is absolutely inadequate and unreliable and also further for the reasons that the respondent has not examined himself and Mahadeo (respondent's vendor)? d) Whether the courts of proving ownership of 5 acres and 29 gunthas. It was the respondent who was to prove first whether he was owner of 5 acres 29 gunthas land? e) Whether the findings of the courts below about the ownership of 5 acres and 29 gunthas land is in disregard of evident and/or whether it is assumption of facts without enquiry? 7. I have heard the learned counsel for the appellants, none appeared for the respondent. 8. The only material question is whether the plaintiff is the owner of 5.29 gunthas of land. If the answer to this is in the affirmative it naturally follows that defendant did commit an encroachment, since the main defence of the defendant is that plaintiff is the owner of 5 acres land only. 9. 8. The only material question is whether the plaintiff is the owner of 5.29 gunthas of land. If the answer to this is in the affirmative it naturally follows that defendant did commit an encroachment, since the main defence of the defendant is that plaintiff is the owner of 5 acres land only. 9. Having regard to the fact that the question of law on which the appeal has been admitted, I find that all questions can be answered in the affirmative if it is shown that plaintiff was owner of 5 acres land only and not 5.29 Gunthas. Since the appeal has been admitted on the ground of perversity in appreciation of the evidence it would be necessary in details, although there are concurrent findings. 10. It is the case of the plaintiff that he purchased the suit property from one Mahadeo. He claimed to have purchased 5.29 Gunthas of land. By amending the plaint it is contended by the plaintiff that Mahadeo and his vendor Punjaji were cultivating 5.29 Gunthas of land and they had a possessory title. It is contended that therefore Mahadeo had a right to sell 5.29 gunthas land to the plaintiff. Defendant on the other hand specifically denied that the area of the plaintiff's field is 5.29 Gunthas. It is contended that the suit field originally belonged to defendant's father who sold it to Mahadeo and Mahadeo to the plaintiff. 11. The contention of the plaintiff that his predecessor had a possessory title and therefore he could transfer it to plaintiff cannot be accepted. The reason is no person can transfer a better title than what he himself has, and no person can transfer the property of which he is not the owner. Evidence has to be appreciated in the context of the fact that defendant claims that plaintiff's father was owner of 5 acres of land only and plaintiff during the measurement is found to be in possession of 5 acres land only. 12. The Court has to in fact look into the documentary evidence first and then oral. The evidence pertains to the transfer of land from one person to another. The defendant has examined plaintiff's vendor's father by name Punjaji, but before we look into the oral evidence we have to have a look at the documentary evidence. 12. The Court has to in fact look into the documentary evidence first and then oral. The evidence pertains to the transfer of land from one person to another. The defendant has examined plaintiff's vendor's father by name Punjaji, but before we look into the oral evidence we have to have a look at the documentary evidence. The defendant has placed on record certified copies of the Index Register II maintained by the Sub Registrar in respect of the instruments registered with him. It is a public document. The first certified copy is on page 21 of file 'C' of the trial Court. It shows that defendant's father Bhaskar had sold only 5 acres land to one Krishnarao out of 16 acres 17 gunthas of Sur. No. 58 on 15.07.44. The next document at page 20 shows that Punjaji had purchased the same 5 acres land on 11.03.46 from Krishnarao. It is thus clear that defendant's contention that his father was owner of the field Survey No. 58 and that he sold only 5 acres land is borne out of these documents. Undisputedly Punjaji had purchased only 5 acres of land from Krishnarao. He thus became owner of 5 acres of land only. This Punjaji has been examined by defendant as D. W. 2. He is 70 years old man and he specifically deposes that he purchased only 5 acres of land and sold only 5 acres to Mahadeo. He also states that he has lost the original sale deed. Secondary evidence is therefore admissible. His oral evidence therefore corroborates the entry in the Index Register referred to above. To rebut this evidence it was incumbent on the plaintiff to have examined Mahadeo or to file sale deed or index in his favour. Mahadeo is not examined but his son is examined as P. W. 3. Although Mahadeo is alive and is not examined, an adverse inference has to be drawn. P. W. 3 Ramdas does not seem to have any personal knowledge although he says his father took possession after measurement. He admits that he was not present at that time. He did not bring with him the sale deed. Again an adverse inference has to be drawn against the plaintiff that had this witness produced the sale deed it would have shown that Mahadeo had purchased only 5 acres of land. He admits that he was not present at that time. He did not bring with him the sale deed. Again an adverse inference has to be drawn against the plaintiff that had this witness produced the sale deed it would have shown that Mahadeo had purchased only 5 acres of land. It was therefore Mahadeo or the sale deed itself which would have and could have rebutted the evidence of Punjaji and copies of the Index Register. 13. Further it appears that at the instance of plaintiff entry in respect of Record of Rights is taken in respect of purchase by the plaintiff. This entry in Column 10 of Ex. 43 shows that plaintiff has purchased 5 acres of land from Mahadeo. Not only this, but again in Col. 13 at Ex. 43 the entry is 5 acres share only. This entry could be said to be taken on the basis of the information given by the plaintiff and his vendor only. No third person could give this information and no such entry could be taken at the instance of a third person. This again corroborates the version of defendant. 14. It appears that although in record of rights entry of purchase of 5 acres of land is taken subsequently they seem to have been changed for which there is no explanation. 15. Plaintiff has claimed that defendant has demolished the Dhura i.e. the boundary and encroached on the plaintiff's field. Surprisingly though plaintiff specifically comes out with a case of demolition of the boundary, he does not give even the approximate date of such act of the defendant. The area said to be encroached is around one acre. It is therefore apparent that the demolition of such a long boundary within a day or two is not possible. The fact that plaintiff is unable to give even an approximate date and time of such act suggests that the story is not true. In the evidence P. W. 2, the power of attorney of plaintiff states that the Dhura was demolished by defendant in 1976 by ploughing it, but he admits having not lodged any report with the police or having given the notice to the defendant. In the evidence P. W. 2, the power of attorney of plaintiff states that the Dhura was demolished by defendant in 1976 by ploughing it, but he admits having not lodged any report with the police or having given the notice to the defendant. Now if act of ploughing the boundary and encroaching was within the knowledge of the plaintiff and a large extent of land was allegedly encroached, it is hard to believe that he will fail to lodge a report or give a notice or even file a suit for injunction. Such inaction suggests once again that the story is false. Further P. W. 3 Ramdas son of Mahadeo gives a very different version. He states that the boundary was destroyed by Bhaskar, the father of the defendant but he is unable to tell the date. Ex. 84 Record of Right entry in Column 10 shows that Bhaskar died in the year 1967. The sale deed of Mahadeo in favour of plaintiff is of 1975. Thus according to this witness Dhura was destroyed during the ownership of Mahadeo. P. W. 2 says it was in 1976. This is not the story put up by the plaintiff in the plaint and what the P. W. 2 says. since we have already seen that P. W. 2 states specifically that Dhura was demolished in the year 1976. This type of inconsistent evidence completely negatives the story of plaintiff, of defendant having demolished the Dhura and encroached on plaintiff's land. Courts below have totally ignored this inconsistency. Further in fact plaintiff having not pleaded the date of such destruction and encroachment, was not entitled to tender any evidence of incident having taken place at a particular time. Such evidence becomes inadmissible. 16. The fact that the plaintiff is in possession of 5 acres only and the theory of defendant having made encroachment after purchase does not hold water, it can be concluded that the vendor of the plaintiff was owner of 5 acres of land and he put plaintiff in possession of 5 acres of land. Plaintiff's father could not convey more than 5 acres of land. Court below had failed to appreciate evidence in right perspective. They ignored the documentary evidence available on record. The findings were therefore perverse. The result is, the appeal must be allowed and suit dismissed. Respondents shall pay costs throughout. Plaintiff's father could not convey more than 5 acres of land. Court below had failed to appreciate evidence in right perspective. They ignored the documentary evidence available on record. The findings were therefore perverse. The result is, the appeal must be allowed and suit dismissed. Respondents shall pay costs throughout. Substantial questions of law are answered accordingly.