Bombay High Court
PRABHAKAR DHONDIRAM BHUSARE and ORS.versusJAIRAM MURLIDHAR GAVALI
- Decided
- Disposal
- Disposed Off
Holding
The Court held that service of summons was proper, the measurement map remained valid, and the encroachments must be removed, leading to dismissal of the appeals.
Summary
The plaintiff filed suits for removal of encroachment and recovery of possession of land, alleging that the defendants had constructed houses on his property. The defendants failed to appear, resulting in ex‑parte decrees granting the plaintiff relief. On appeal under Section 96 of the CPC, the defendants contended that service of summons was improper, that the measurement map of the Taluka Inspector of Land Records had been set aside by the Sub‑Divisional Officer, and that houses built under the Indira Awas Yojana negated any encroachment. The High Court held that service of summons was valid under Order V Rule 17, that no order of the SDO was produced and therefore the measurement map remained reliable, and that construction under the scheme did not confer ownership of the land. Consequently, the appeals were dismissed as lacking merit, and the related civil applications were disposed of.
Issues considered
- Whether service of summons on the defendants complied with the provisions of the Code of Civil Procedure.
- Whether the alleged setting aside of the TILR measurement map by the Sub‑Divisional Officer affects the validity of the trial court's decree.
- Whether construction of houses under the Indira Awas Yojana constitutes a defence against an encroachment claim.
- Whether any substantial question of law arises warranting reversal of the lower courts' decrees.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 41 Rule 27, Order V Rule 17, Section 96
Subjects
- encroachment
- service of summons
- Civil Procedure
- ex‑parte decree
- measurement map
- Indira Awas Yojana
- possession
- appeal dismissed
Judgment
2026:BHC-AS:37972
Renuka Thakur 905-SA-572-2023.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 572 OF 2023
WITH
CIVIL APPLICATION NO. 1553 OF 2019
Chandrakant Tulshiram Gavali and ...Appellants
Anr.
V/s.
Jairam Murlidhar Gavali ...Respondent
WITH
SECOND APPEAL NO. 574 OF 2023
WITH
CIVIL APPLICATION NO.1551 OF 2019
IN
SECOND APPEAL NO. 574 OF 2023
Prabhakar Dhondiram Bhusare And …Appellants
Ors.
V/s.
Jairam Murlidhar Gavali ...Respondent
________________
Mr. Rohan D. Kaiche for Appellants.
Ms. Jyoti Bajpayee Pandey for Respondent.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 11 SEPTEMBER 2026.
P.C.:
Page No.1 of 5
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1) These Appeals challenge the judgments and orders passed
by the Principal District Judge, Nashik on 3 January 2018 in Regular Civil
Appeal Nos. 342 of 2012 and 344 of 2012. The Lower Appellate Court has
dismissed the Appeals preferred by the Appellants and has confirmed the
decrees of the Trial Court dated 27 August 2010 passed in Regular Civil
Suit Nos. 301 of 2007 and 303 of 2007.
2) I have heard Mr. Kaiche, the learned counsel appearing for
the Appellants and Ms. Bajpayee Pandey, the learned counsel appearing
for the Respondent and have considered the submissions canvassed by
them.
3) Plaintiff’s Suit was for removal of encroachment and
recovery of possession of encroached portion. It is Plaintiff’s case that
Appellants/Defendants encroached upon portions of his land and
constructed houses thereon. Appellants/Defendants were served with
suit summons. However, they did not appear before the Trial Court and
the suit proceeded ex-parte. Plaintiff examined himself and relied upon
measurement map of Taluka Inspector of Land Records(TILR) to prove
the encroachments on land admeasuring 109 Sq. Mtrs and 35 Sq. Mtrs.
The Trial Court accordingly proceeded to decree both the Suits on 27
August 2010.
4) Appellants preferred Appeals under Section 96 of the Code
of Civil Procedure, 1908 (Code) before the Principal District Judge. Their
case before the District Court was that service of summons was improper.
However, in case of Appellants-Chandrakant Gavli and Lilabai Gavli, it
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was established that Defendant No. 2 (Lilabai Gavli) accepted the suit
summons for herself and on behalf of her husband. Acceptance of service
was also witnessed by another person. In case of Bhusare's, the Appellate
Court has recorded a finding that Defendant Nos. 1 and 2 were out of
station and their suit summons and copies were pasted on conspicuous
part of the residential house of the Defendant as per order V Rule 17 of
the Code. Similarly, the Bailiff had met mother of Defendant No. 1 at the
time of pasting of the suit summons. I am satisfied that in the both the
suits, there has been a proper service and the first Appellate Court has
rightly refused to set aside the decrees on the ground of improper
service.
5) It is sought to be contended on behalf of the Appellant-
Gavlis that Plaintiff’s case in the affidavit of evidence was in respect of
encroachment to be extent of only 621 Sq. Ft in the operative part of the
decree, removal of encroachment of land admeasuring 109 Sq. Mtrs is
ordered. However, it appears that the Trial Court has taken into
consideration the measurement map, which clearly indicated
encroachment on portion of land admeasuring 109 Sq. Mtrs. Therefore,
there is no error in the decree passed in the case of Gavlis for removal of
encroachment from land admeasuring 109 Sq. Mtrs.
6) It is argued on behalf of the Appellants that the
measurement map of TILR relied upon by the Trial Court has been
subsequently set aside by the Sub-Divisional Officer (SDO). It is
submitted that this ground was specifically urged in the Appeal filed
before the first Appellate Court. Though a vague ground of setting aside
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measurement map by SDO, Nashik in encroachment Application No.
5/2007 was raised in the Appeal memo, the so called order of SDO,
Nashik was not attempted to be produced before the Appellate Court by
filing Application under Order 41 Rule 27 of the Code. Thus, apart from
vague ground raised in the Appeal memo, the first Appellate Court did
not have the benefit of perusal of any such order of SDO. Even before this
Court, the so called order of the SDO is not produced. In my view,
therefore, there is no reason to discard the measurement map of TILR
which is relied upon by the Trial and the first Appellate Courts.
7) It is also sought to be contended on behalf of the Appellants
that they are allotted houses under Indira Awas Yojna and that therefore
there is no encroachment in the present case. There is no written
statement by the Appellants and therefore this Defence cannot be really
taken into consideration. However, even if the aspect of non filing of the
written statement is to be momentarily ignored, mere construction of
houses under Indira Awas Yojana does not ipso facto mean that the
construction is legal or that Appellants have become owners of the land
beneath the houses. Under the scheme, Appellants may have received
funding for construction of houses. However, ultimately it is proved that
the houses are constructed on the lands belonging to the Plaintiffs.
Therefore, there is no error on the part of the Trial and the Appellate
Courts in directing removal of encroachments. Considering the overall
conspicuous of the case I am of the view that no substantial question of
law is involved in the Appeals. The concurrent findings recorded by the
Trial and the first Appellate Courts appear, to my mind, to be
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unexceptional. Both the Appeals are devoid of merits. They are
accordingly dismissed.
8) In view of dismissal of Appeals, above Civil Applications do
not survive and are accordingly disposed of.
[SANDEEP V. MARNE, J.]
Signed by: Renuka S Thakur
Page No.5 of 5
Designation: PA To Honourable Judge 11SEPTEMBER 2026
Date: 17/09/2026 15:33:31
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