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The suit is not maintainable under Section 138 of The Maharashtra Land Revenue Code, 1966, as no evidence was placed on record to corroborate the claim- Supreme Court
In this case of RAMBHAU GANPATI NAGPURE VERSUS GANESH NATHUJI WARBE & ORS, an appeal was filed by the appellant in the Supreme Court of India challenging the decision of the Nagpur Bench of the High Court of Bombay. In this case the parties owned agricultural land adjoining each other in Mouza Sirsi. The plaintiffs filed a suit claiming that the ancestral land of the plaintiffs was about 6.07 hectares, and to the south of the field of the plaintiffs lay the defendant’s (Appellant before us) field and the area of the land owned by the defendant was 4.23 hectares. A resurvey was done in the year 1991 and in the resurvey the land of the defendant was shown to be 5.3 hectares, which was in excess by 1.07 hectares.
Thereafter, the plaintiffs filed an application before the Sub Divisional Officer, Umrer, and got the field remeasured as per the old record. Thereafter, the S.D.O. by his order dated 31.07.2000 directed the Taluka Land Inspector for correction of revenue record whereby the original position of the field was restored. In the revenue record, the area and maps of the plaintiffs’ field as well as 7/12 extract of the field of plaintiffs was corrected. The case of the plaintiffs was that the defendant erected wire fencing, encroached upon the land of the plaintiffs and, therefore, the suit was filed for possession of the land encroached by the defendant. On 03.01.2005 the Civil Judge decreed the suit and held plaintiffs to be entitled to possession and directed the defendant to deliver the possession of the disputed land. Defendant filed a regular civil appeal challenging this order and the appeal was dismissed by the District and Sessions Judge on 03.05.2008.
Challenging this, the appellant filed a second appeal which was dismissed by the High Court on 28.01.2009. All the courts have held that the defendant has encroached upon the land of the plaintiffs. The Supreme court held “under Section 138 of The Maharashtra Land Revenue Code, 1966 the suit is not maintainable. We find that this objection is totally without any merit. In fact, Section 138 clearly provides that a civil suit can be instituted against any order of ejectment. No provision has been pointed out where the jurisdiction of the civil court has been specifically barred .In view of the above discussions, we find no merit in the appeal and the same is dismissed. Applications, if any, shall also stand dismissed.”
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