1. The appellant has filed the present Second Appeal, thereby challenging the judgment dated 22.04.2022 passed by the learned District Judge-1, Oras, in Regular Civil Appeal No.73 of 2015 and the judgment and decree dated 25.03.2015 passed by the learned Civil Judge, Junior Division, Malvan, in Regular Civil Suit No.24 of 1997, whereby the suit filed by the plaintiff for permanent and mandatory injunction for removal of encroachment came to be decreed.

2. The learned counsel for the appellant submits that both the learned Courts below have failed to take into consideration that the plaintiff has failed to give a proper description of his one-third share by furnishing the four boundaries and has also failed to annex the sketch of the alleged encroached portion as contemplated under Order VII Rule 3 of the Code of Civil Procedure.

3. It is further submitted that the alleged encroachment is more than 50 years old and, therefore, the suit for recovery of possession and mandatory injunction was barred by limitation. The suit came to be instituted on 05.04.1997 and after a lapse of about 12 years, the amendment seeking recovery of possession was allowed by the Appellate Court on 28.06.2013. It is, therefore, submitted that the amendment itself was barred by limitation. The plaintiff was fully aware of the old construction of the Padvi and, therefore, the suit is hit by the principles of estoppel, laches and acquiescence. It is further submitted that the plaintiff has failed to establish the alleged encroachment. The Court Commissioner appointed by the Appellate Court exceeded the scope of the order by also measuring Hissa Nos.15, 17, 19, 21 and 22, though he was directed only to conduct a joint measurement of Survey No.45, Hissa Nos.19 and 21. It is also contended that the measurement is inaccurate; the house of the defendant is not shown in the map; Exhibit-117 has not been proved in accordance with law; and that the defendant had merely repaired the Padvi after obtaining due permission from the Gram Panchayat. It is further submitted that the learned Trial Court did not frame any issue regarding possession or limitation. Hence, according to the appellant, the learned First Appellate Court ought to have allowed the appeal.

4. After going through the record of both the learned Courts below, the following substantial question of law appears to be involved in the present appeal and is emphasized by the learned counsel for the appellant for consideration of this Court under Section 100 of the Code of Civil Procedure:

                    (i) Whether the findings arrived at by the learned Courts below are perverse to the evidence led by the parties?

                    (ii) Whether the first appellate court was right in reversing the erroneous findings of the learned trial court on necessity to grant recovery of possession of land beneath the new Padvi, by exercising powers under Order 41 Rule 33 of the CPC?

5. The perusal of the record shows that initially the plaintiff instituted the suit for simpliciter injunction on 05.04.1997. The plaint was subsequently amended and the relief of mandatory injunction was also sought. Initially, the suit came to be decreed on 04.03.2003 by granting a decree of mandatory injunction. The defendant preferred Regular Civil Appeal No.90 of 2003, which came to be allowed on 10.01.2006 and the matter was remanded to the learned Trial Court with a direction to obtain the report of the Court Commissioner regarding the dimensions of House No.1479 and thereafter permit the parties to examine the Court Commissioner.

6. Thereafter, the learned Trial Court again decreed the suit on 28.11.2007. The plaintiff preferred Regular Civil Appeal No.1 of 2008 before the Principal District Judge, Sindhudurg. By order dated 28.06.2013, the learned Principal District Judge permitted the plaintiff to amend the plaint by incorporating the relief of recovery of possession. The said order was not challenged by the defendant. Thereafter, by judgment dated 05.02.2014, the decree was set aside and the matter was again remanded to the learned Trial Court with a direction to appoint the TILR, Malvan, as the Court Commissioner to conduct a joint measurement of Survey No.45, Hissa Nos.19 and 21 after following the prescribed procedure, fix the boundaries and submit a report as to whether the plea of encroachment was factually correct.

7. After remand, the learned Trial Court appointed the TILR, Malvan, as the Court Commissioner, who conducted the joint measurement. The Surveyor attached to the office of TILR, Malvan, was examined as PW-7. Relying upon his testimony and the measurement map at Exhibit-117, the learned Trial Court decreed the suit by holding that the plaintiff had proved that the defendant had encroached upon the suit property as reflected in the measurement map.

8. The appellant thereafter preferred an appeal before the learned First Appellate Court. The learned First Appellate Court, after considering the entire evidence on record, the earlier orders of remand and the findings recorded by the learned Trial Court, dismissed the appeal. Hence, the present Second Appeal.

9. The plaintiff examined PW-1 Achyut Pednekar, the plaintiff's brother, and PW-2 Manika Haldankar, Member of Gram Panchayat, Achara. The defendant also entered the witness box and adduced evidence in support of his defence.

10. The perusal of the record shows that PW-7 Ramkrishna Chavan, Surveyor attached to the office of TILR, Malvan, carried out the joint measurement of Survey No.45, Hissa Nos.19 and 21 after issuing prior notices to the plaintiff, the defendant and the adjoining holders.

11. The measurement map at Exhibit-117 clearly shows that the appellant, who is the holder of Hissa No.19 of Survey No.45, has encroached upon a portion of Hissa No.21 of the same survey number. The encroached portion is shown in blue colour in the measurement map and measures 9 metres in length and 4 metres in width, as reflected in the 'A' sheet.

12. The testimony of PW-7 Ramkrishna Chavan further shows that he carried out the measurement from the fixed point situated at the corner of Survey No.45, Hissa No.15, by adopting the plane table method. The testimony of PW-7 Ramkrishna Chavan was not shattered in the cross-examination. There was nothing to disbelieve or discard the testimony of PW-7, who was an independent witness having no axe to grind. The discrepancies pointed out in the deposition of PW-7 are not of such a material nature as would wash away his entire evidence.

13. The plaintiff had initially instituted the suit for simpliciter injunction and, therefore, there was no necessity to annex a sketch showing the alleged encroachment along with the plaint. After the order of status quo came to be passed on 05.04.1997, the defendant nevertheless carried out further construction and, therefore, the plaint came to be amended.

14. Though the defendant contended that the Padvi had been in existence for the last 50 years, no evidence whatsoever was led in support of the said contention. The record further shows that the plaintiff had immediately raised objections before the Circle Officer as well as the Gram Panchayat requesting them to stop the unauthorized construction. Upon failure of the authorities to take any action, the plaintiff instituted the present suit. Since the construction was completed during the pendency of the suit, the plaintiff amended the plaint and sought the relief of mandatory injunction for removal of the encroachment, which amendment came to be allowed by order dated 19.06.1998. The suit having been instituted on 08.04.1997, the same cannot be said to be barred by limitation.

15. The plaint was further amended pursuant to the order dated 28.06.2013 passed in Regular Civil Appeal No.1 of 2008, whereby the plaintiff was permitted to claim recovery of possession of the encroached portion. The defendant did not challenge the said order and, therefore, the amendment attained finality. It cannot, therefore, be said that the suit was barred by limitation.

16. Insofar as the plea of adverse possession is concerned, the same was not established by the defendant by leading any cogent evidence. The evidence of the plaintiff, the witnesses and the panchnama clearly indicate that the additional construction came to be raised only in the year 1997 during the pendency of the suit. No specific plea of adverse possession was taken by the defendant. No specific date has been pleaded or proved as to when the defendant's possession became adverse to that of the plaintiff.

17. The defence taken by the defendant is also inconsistent. On one hand, the defendant has denied having made any encroachment and, on the other hand, has contended that if any portion of the Padvi is found to have encroached upon the plaintiff's land, the defendant has perfected title thereto by adverse possession. Thus, the essential ingredients required to establish the plea of adverse possession have not been proved. The learned Trial Court has, therefore, rightly decreed the suit.

18. The plaintiff having been permitted to amend the plaint so as to claim the relief of mandatory injunction as well as recovery of possession, the reliefs sought were well within limitation. Since the appellant failed to establish the plea of adverse possession, the Courts below rightly held that the suit was within limitation.

19. Thus, I do not see any perversity in the findings arrived at by the learned Courts below in holding the plaintiff entitled to a decree of mandatory injunction and recovery of possession. The substantial question of law No. (i) framed hereinbefore is, therefore, answered accordingly.

20. It is true that the learned Trial Court erroneously recorded a finding while deciding the issue that the question of granting vacant possession of the land beneath the newly constructed Padvi did not survive. However, the judgment of the learned Trial Court clearly directed the defendant to hand over vacant possession of the encroached portion after removing the unauthorized construction. Though the learned Trial Court observed that the plaintiff was not completely dispossessed from the entire suit property and, therefore, there was no necessity to grant recovery of possession of the land beneath the new Padvi, the learned First Appellate Court, while exercising powers under Order XLI Rule 33 of the Code of Civil Procedure, rightly corrected the said erroneous finding without there being any cross-objection by the respondent and held the plaintiff entitled to the relief of mandatory injunction as well as recovery of possession of the encroached portion. In view of Order XLI Rule 33 of the Code of Civil Procedure, the Appellate Court was fully empowered to correct the erroneous finding recorded by the learned Trial Court even in the absence of any cross-objection. The powers under Order 41 Rule 33 are wide enough to do complete justice between the parties and enables the appellate court to pass such decree or order as ought to have been passed notwithstanding that the party in whose favor the power is sought to be exercised have not filed in any appeal or cross objection. The Hon'ble Supreme Court, in the case of State of Punjab v. Bakshish Singh, reported in MANU/SC/0650/1998, was pleased to hold in paragraphs 7 and 8 as under:

                    “7. In this case, what we propose to do would be fully in consonance with the provisions of order XLI Rule 33 which provides as under: "

ORDER XLI APPEAL FROM ORIGINAL DECREES:

                    33. Power of Court of Appeal :The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

                    Provided that the Appellate Court shall not make any order Under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

                    8. This provision gives very wide power to the appellate court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed in any appeal or cross-objection.”

21. Thus, the substantial question of law No.(ii) pertaining to the exercising of powers under Order 41 Rule 33 is answered accordingly.

22. The learned Courts below have, therefore, rightly held that the defendant has encroached upon the suit property to the extent of 9 metres in length and 4 metres in width, as shown in blue colour in the measurement map at Exhibit-117, by raising additional construction. The claim of the plaintiff for mandatory injunction and recovery of possession has also been rightly held to be within limitation.

23. No other substantial question of law appears to be involved in the present appeal. The present Second Appeal is, therefore, devoid of substance and merit and is hereby dismissed.

24. In view of the disposal of the Second Appeal, the Interim Application, if any, also stands disposed of.