JUDGMENT/ORDER 1. Heard. 2. The present second appeal is filed being aggrieved by the judgment and decree passed by the learned First Appellate Court on 19/07/1987 in Regular Civil Appeal No.131 of 1984 confirming the judgment and decree passed by the learned Trial Court on 20/09/1984 in Regular Civil Suit No.133 of 1981 dismissing the suit. Plaintiff filed suit seeking relief of possession on the strength of title as well as on the ground that the defendant has made encroachment to the extent of 2 gunthas on the land of the former. 3. The facts of the present case are as under: The plaintiff is the owner of the agricultural land bearing survey no. 75/4-A situated at Nandura district Buldhana. The plaintiff had purchased 7 gunthas of land from field Survey No.75/4-A of Nandura, Dist. Buldhana from its previous owner Motisingh Bankatsinha under different sale deeds on 02/07/1974, 29/08/1974, 04/10/1974 and 05/02/1975 and since then, he is in possession of the same as an owner thereof. The case of the plaintiff is that the defendant without any right, title or interest encroached upon a portion of 2 gunthas of the said land (hereinafter referred to as the suit land), in Summer 1976 and constructed a hut thereon. Therefore, the plaintiff issued a notice to him on 02/04/1976 calling upon him to deliver the possession of the suit land, but the defendant gave false reply to the said notice, contending that the acquired the possession of the suit land from its previous owner Motisingh, in pursuance of oral sale free from all encumbrances and has become its owner. However, the plaintiff could not take any legal action against the defendant due to his pre-occupation and as he was cut of Nandura for the purpose of his service. After his return to Nandura, the second notice on 26/11/1980 was also served on the defendant but in vain. Therefore the plaintiff was constrained to file the suit for recovery of possession on the strength of title as well as on the basis that the defendant is in possession as a consequence of encroachment to the extent of 2 gunthas of land, before IInd Joint Civil Judge Jr. Dv. Malkapur. Suit was filed for the recovery of possession or the suit land and damages of the last three years, amounting to Rs.1800.00. 4. Dv. Malkapur. Suit was filed for the recovery of possession or the suit land and damages of the last three years, amounting to Rs.1800.00. 4. The defendant appeared in the said matter and resisted the claim of the plaintiff and submitted that he is in possession of the suit land continuously since 1962 as an owner thereof and he specifically denied the plaintiff's title to it. It is further submitted by the defendant that the sale deed in question are nominal and fabricated and they do not confer any right of ownership upon the plaintiff and therefore the plaintiff is not entitled to recover the possession of the suit land from him and also prayed for the dismissal of the suit. 5. After considering the matter before it, the learned lower court dismissed the plaintiff's suit as he failed to prove his title to the suit land and also failed to prove the encroachment made by the defendant on the suit land. Being aggrieved and dissatisfied by the said judgment the plaintiff preferred Appeal before the learned Additional District Judge Khamgaon. Learned Appellate court also dismiss the appeal on the ground that the plaintiff failed to prove that on which specific portion of the plaintiff's land the alleged encroachment was made by the defendant. 6. The said judgment was challenged before this Court. This court had allowed the appeal by setting aside the judgments and decrees passed by both the courts below and directed the defendant to deliver possession of the land to the plaintiff under encroachment. The respondent filed Civil Appeal No.922/2004 before the Hon'ble Supreme Court. On 06/01/2016, the Hon'ble Apex Court, considering the report of the Commissioner is required, allowed the appeal and remanded the matter back to this Court either to direct the First Appellate Court to pass appropriate order or appoint a Revenue Commissioner for the purpose of measurement of the land in question and submission of report. 7. Accordingly this Court vide order dtd. 13/07/2017, remitted matter back for appointment of Commissioner and measurements. After receipt of report it was found that Court Commissioner has not considered/obtained title document which carrying out measurement. Therefore, again matter was remitted back by order dtd. 11/10/2022, by this Court. Thereafter, report was placed after recording evidence of Commissioner. 7. Accordingly this Court vide order dtd. 13/07/2017, remitted matter back for appointment of Commissioner and measurements. After receipt of report it was found that Court Commissioner has not considered/obtained title document which carrying out measurement. Therefore, again matter was remitted back by order dtd. 11/10/2022, by this Court. Thereafter, report was placed after recording evidence of Commissioner. The judgment and decree passed by Additional District Judge, Khamgaon in RCA No. 131/1984, is the subject matter of challenge in the present second appeal. 8. The learned counsel for the Appellant contended that courts below erred in not holding that the appellant purchased 7 gunthas of land bearing survey no. 75/4-A, and that the respondent encroached upon 2 gunthas of land as shown in the plaint map from survey no. 75/4-A on the basis of unrebutted evidence of plaintiff/appellant, particularly so in view of the replies given by the respondent to the appellant's notices. It is further contended that courts below ought to have seen that the replies made by the respondent to the plaintiff's notices are denied by the respondent on the ground that he does not recollect to have given such replies. Such type of denial coupled with the fact that the respondent has not led any evidence by entering into the witness box ought to have decreed the entire claim of the appellant. The finding of the courts below leading to dismissal of appellant's suit are based on perverse reasoning which needs interference by this court. 9. The learned Counsel for the Appellant relied on following citations are as under: i) Laxman Wamanrao Nagapure vs Shankar Haribhau and another, in Second Appeal No. 123 of 2013 10. The learned counsel for the respondent contended that the learned lower courts below has rightly taken into consideration the fact that respondent is in possession of the suit land continuously since 1962 as an owner and plaintiff failed to prove that there was any encroachment made by the plaintiff regarding the suit land and passed an appropriate order, which needs no interference and also prayed for dismissal of the present appeal. 11. Heard both the parties at length. Perused the record and proceedings and judgment passed by both the Courts below. 11. Heard both the parties at length. Perused the record and proceedings and judgment passed by both the Courts below. It is a matter of record that being technical errors in report of Commissioner, as he has not considered sale deeds and other documents, matter was remanded back with direction to remeasure the land. Accordingly, this Court vide order dtd. 11/10/2022 remanded the matter back for remeasuring the land and for submission of report. As per directions, the Court Commissioner came to be appointed from the office of Superintendent of Land Record. He submitted his report along with map and opportunity was granted to the parties to crossexamine. Thereafter, report came to be placed on record. 12. The learned Lower Court though recorded findings in respect of ownership of land in favour of plaintiff as he has proved that he has purchased total land 7 Gunthas out of Survey No.75/4 A from one Motisingh. He has placed on record copies of sale deed i.e. Exhibits 30 to 32. In all four copies wherein Exhibit 30 is the sale-deed exhibited on 07/07/1974 and by these sale-deeds, the plaintiff has purchased 2 Gunthas of land. Exhibit 31 is the sale-deed dtd. 04/10/1974 and he has purchased 2 Gunthas of land. Exhibit 32 is the sale deed dtd. 05/02/1975 and he has purchased 1 Guntha land. Exhibit 33 is dtd. 29/08/1974 by which he has purchased 2 Gunthas of land. All these sale-deeds are in respect of land in Survey No.75/4 originally owned by Motisingh. All these lands adjacent to each other. Thus, he is the owner of 7 Gunthas of land. There are Exhibits 34 and 35, showing mutation entries in the name of plaintiff, on the basis of sale-deeds executed in his favour. The learned Both the Courts below dismissed the suit on the ground that even though it is admitted by the defendant that Motisingh was having a right to sale the suit property, the plaintiff has not proved exact portion of land which is encroached and in view thereof, the suit as well as appeal was dismissed. 13. This Court while admitting the appeal framed following substantial questions of law: "1. Whether the Judgments and Decrees of the Courts below are sustainable in view ofa) Respondent not leading any evidence in support of his claim of ownership of suit land and to rebut the appellant's evidence. 13. This Court while admitting the appeal framed following substantial questions of law: "1. Whether the Judgments and Decrees of the Courts below are sustainable in view ofa) Respondent not leading any evidence in support of his claim of ownership of suit land and to rebut the appellant's evidence. b) The admissions made by the respondent in reply to notices dtd. 02/04/1976 and 02/11/1976 issued by the appellant to the respondent. The respondent in his reply dtd. 07/05/1976 and 29/12/1976 in clear terms admitted that he is in possession of suit land owned by the appellant and in this view of the matter the identity of the suit land encroached upon by the respondent could not be in dispute. c) The finding given by the Lower Appellate Court in para 9 of the Judgment against the defence taken by the respondent in contesting the claim of the appellant." 14. It appears that earlier this Court has allowed the Second Appeal which was challenged before the Hon'ble Apex Court and the Hon'ble Apex Court after referring paragraph Nos.28 and 29 of the judgment, pleased to remit back the matter for joint measurement of the property. Accordingly, this Court sent the record and proceedings to the learned Lower Appellate Court for appointment of Commissioner and for sending report. After appointment of Commissioner and sending report of the same, it was found that the learned Commissioner submitted his report without verifying the document of title, though it was part of proceeding. Accordingly, the said Commissioner's report was set aside and matter was again remanded back for remeasurement. 15. This time, after considering the document of title, the Commissioner submitted his report after joint measurement in the presence of witnesses and after perusal of sale-deeds and other documents of both the parties. I have gone through the Commissioner's report and map annexed thereto. As per the Commissioner's report, exact area as per the Revenue Record i.e. 7/12 are as follows: After measurement, the possession was found as below: For the sake of convenience following map is produced. 16. As per the report, the plaintiff in his possession 521.17 sq. mtrs whereas defendant is in possession of 243.54 sq.mtrs. If it is duly established that the plaintiff has purchased 7 Gunthas of land from Motisingh and Motisingh was having valid title to transfer the same. Accordingly, Revenue entries are there. 16. As per the report, the plaintiff in his possession 521.17 sq. mtrs whereas defendant is in possession of 243.54 sq.mtrs. If it is duly established that the plaintiff has purchased 7 Gunthas of land from Motisingh and Motisingh was having valid title to transfer the same. Accordingly, Revenue entries are there. Plaintiff therefore ought to have been in possession of 7 Gunthas of land. If deposition of Motisingh is perused, he deposed that he sold 7 Gunthas of land at the rate of Rs.1250.00 per guntha to the plaintiff vide 4 sale-deeds. Defendant's hut was there since last 7 to 8 years (date of deposition is 02/08/1984). As such, in the notice as alleged by plaintiff that in the year 1976, the defendant encroached upon his land appears to be probable. Motisingh also further deposed in-chief that defendant was not his tenant nor of his paternal uncle Kanusingh. He admitted sale-deeds, Revenue entries and he denied the suggestion that he has given 2 gunthas of land to defendant. He handed over the possession to the plaintiff from his possession. He denied that the defendant is in possession of the land since the lifetime of Kanusingh. He asserted that the land was handed over after measurement. However, he admitted receipt of the rent at Exhibit 51. On perusal of said receipt, it appears that it is rent receipt in respect of 9 years together i.e. from 15/05/1967 to 14/05/1976 of receipt of amount of Rs.1080.00. However, this receipt in my considered opinion is got up receipt as Motisingh himself deposed that he is not given property on rent to the defendant. Moreover, it is in respect of 9 years rent together. On Motisingh's own admission, the defendant was residing there in the hut since around 1976 or 1977, which corroborates the contention of plaintiff that defendant has encroached the land in the year 1976. As such, no question arise of making payment of rent for 9 years prior to that. Moreover, defendant did not enter into witness box. If rough sketch which is produced for sake of convenience and other details if seen, the encroached portion is in the field of plaintiff. Whereas defendant in reply to notice (Exh.40) had claimed that he is residing there since 1962-63 as rent but did not enter into witness box to establish the same. 17. If rough sketch which is produced for sake of convenience and other details if seen, the encroached portion is in the field of plaintiff. Whereas defendant in reply to notice (Exh.40) had claimed that he is residing there since 1962-63 as rent but did not enter into witness box to establish the same. 17. The learned both the Courts below erred specifically in observing that though different stands taken by the defendant, the plaintiff failed to substantiate encroachment by placing on record exact position of land. However, at the time of passing of judgment, there was no measurement report. This defect is rectified by appointing Commissioner. The Commissioner has specifically observed that there is only 521.70 sq.mtrs land out of Survey No.75/4 in possession of plaintiff. Whereas, the defendant is found in possession of 243.54 sq.mtrs. out of Survey No.75/4. 1 Guntha equals to 101.17 sq.mtrs. It is admitted position through registered document and evidence laid by the plaintiff that total 7 gunthas of land was purchased by plaintiff, it must be 708.19 sq.mtrs. 18. On the contrary, the defendant has taken 2 different stands in view of his reply to notice and written statement that he was owner of the property and second stand is that he was having possession and property was given to him on rent. Nowhere it is stated how he has become owner as per written statement. Thus, admittedly, the plaintiff is holding less land than that what he has purchased. Whereas, the defendant failed to establish that which property he has taken on rent nor therein any pleading in written statement to that effect nor there is any document on record to show that it was purchased by him. Moreover, he did not enter into witness box. In view thereof, adverse inference needs to be drawn against the defendant. 19. The learned Counsel for appellant relied on Laxman Wamanrao Nagapure (supra), from the facts involved in the present matter, here there is no dispute which property is purchased by plaintiff nor its four boundaries. In the present matter, there is one permanent boundary mark though not in respect of Survey No.75/4, however, the boundaries are mentioned in the sale-deeds, which are not disputed. On the contrary, the defendant failed to enter in to the witness box and taken contrary stand of ownership as well as of tenant. 20. In the present matter, there is one permanent boundary mark though not in respect of Survey No.75/4, however, the boundaries are mentioned in the sale-deeds, which are not disputed. On the contrary, the defendant failed to enter in to the witness box and taken contrary stand of ownership as well as of tenant. 20. Though it was vehemently argued that there were no permanent mark. However, this suggestion is denied by the Commissioner. He has deposed that point 'vk' is the permanent mark on the map and taking the basis of that, the total Survey No.75/4 A was measured. He has specifically observed in the report that ABCDA is the land purchased by plaintiff having area 764.71 sq.mtrs. Out of which GFCDG is the land which is in possession of defendant having area 243.54 sq.mtrs. and out of land purchased by plaintiff, he is only possession of ABFGA i.e. 521.17 sq.mtrs. which clearly goes to show that defendant encroached land around 243.54 sq.mtrs of the land of plaintiff. Not getting of permanent marks in respect of sub division hardly makes any difference as there is one mark at the end of Survey No.75/1 to the North and East. As such, there cannot be said to be any fault in the Commissioner's report. Due opportunity was granted to cross-examine Commissioner, however, nothing favourable to defendant have been brought on record. 21. As such, the present appellant succeeded in establishing the fact that defendant has encroached the land of the plaintiff to the extent of 2 Gunthas of land as claimed by the plaintiff. In view of above discussion, I answered substantial question of law in the negative and held that that the judgment passed by both the Courts below are liable to be set aside. Accordingly, I proceed to pass the following order: ORDER i) The appeal is allowed. ii) The judgment and decree passed by learned Additional District Judge, Khamgaon in Regular Civil Appeal No.131/1984 dtd. 19/07/1987 and the judgment and decree passed by learned 2nd Joint Civil Judge, Junior Division, Malkapur in Regular Civil Suit No.133/1981 dtd. 20/09/1984 is hereby quashed and set aside. iii) The suit is hereby decreed. iv) The defendant/respondent is directed to hand over vacant possession of 2 gunthas of land in his possession out of Survey No.75/4 with immediate effect by removing the super-structure, if any. 20/09/1984 is hereby quashed and set aside. iii) The suit is hereby decreed. iv) The defendant/respondent is directed to hand over vacant possession of 2 gunthas of land in his possession out of Survey No.75/4 with immediate effect by removing the super-structure, if any. v) It is hereby directed to conduct enquiry in respect of future mesne profit under Order XX Rule 12 of the Code of Civil Procedure from the filing of the suit till the recovery of possession in execution proceedings. vi) Decree be drawn up accordingly. The Appeal stands disposed of accordingly.