ascertaining the encroachment in land Gut No.345, the surveyor measured the land in Gut No.345 only, without measuring land in Gut No.344. The decree holders admitted Shankar’s (JD) ownership and title over the land in Gut No.344 by virtue of Sale deed dated 26th March, 1980, but raised a new dispute by claiming that in 1980, wrong piece of land was delivered presuming to be Gut No.344 and altogether a new ground has been raised for decision whereof a full opportunity needs to be offered to the parties by remanding the matter back to the executing Court. In spite of these facts having been brought to the notice of the executing Court, it framed only one issue. The evidence produced by the appellant before the executing Court has not been taken into consideration. The Court ignored the presumption which arises in the circumstances when Shankar (JD) was minor and without any source of income, the land purchased by father – Ramchandra Jojar is necessarily a joint family property. The issue, as to whether the land in Gut No.344, possession of which sought to be recovered was a joint family property, was not a matter in issue in the suit, wherein the decree has been passed.
