1 S.A.301.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 301 OF 2010 Mahadeo Mohan Kakade, Age 27 years, Occup. Business R/o Murud, Tq. & Dist. Latur ...APPELLANT VERSUS Trimbak S/o Dagdu Kamble, Age 44 years, Occup. Service R/o Thombrenagar,Murud Tq. & Dist. Latur ...RESPONDENT ... Shri. R.K.Ashtekar, Advocate for Appellant ... CORAM: SHRIHARI P.DAVARE, J. DATE : 23RD FEBRUARY, 2011. PER COURT : 1. Heard Mr. Ashtekar,learned counsel for appellant. 2. This is Second Appeal filed by the original plaintiff, challenging the Judgment and order dated 19.12.2009, rendered by the learned Ad-hoc District Judge-2 Latur, in Regular Civil Appeal No. 217 of 2008 and also challenging the Judgment and decree dated 03.12.2008, passed by the learned 2 S.A.301.10 Civil Judge Senior Division, Latur, in Regular Civil Suit No.755 of 2006. 3. The parties herein are referred to as per their original status, as plaintiff and defendant. 4. The appellant herein is the original plaintiff, who has filed suit for perpetual injunction, praying to restrain defendant from obstructing and interfering in peaceful possession of the plaintiff over Gram Panchayat House No. 2993, CTS No.2229 admeasuring east-west 20 feet and south-north 50 feet, situated in land block No.598 of village Murud. However, the said suit came to be dismissed by the Judgment and decree dated 03.12.2008, by learned Civil Judge Senior Division, Latur. Being aggrieved and dissatisfied by the said Judgment and decree, plaintiff preferred Regular Civil Appeal No.217 of 2008 before the District Court, Latur, but the same also came to be dismissed by the Judgment and order dated 19.12.2009. Hence, appellant-Ori. 3 S.A.301.10 plaintiff preferred present Second Appeal, assailing both the Judgments of the lower Courts, since, there are concurrent findings against the appellant-Ori. Plaintiff herein. 5. Plaintiff came with the case that, suit plot was purchased by Rajiyabee Muktar Wastad for consideration of Rs.5000/-(Rupees Five Thousand) from one Ambadas Ramchandra Thombre, by a registered sale deed No. 255 of 1993 dated 27.7.1993 and thereafter plaintiff purchased it by registered sale deed, on 18.11.2005. He started construction of three rooms over the suit property, having 1.1/2 feet open space towards western side and 4 feet on eastern side. It is the contention of the plaintiff that defendant has no concern with the suit plot, but made illegal encroachment over the suit plot from 2.1/2 feet open space kept on the western side. Accordingly, plaintiff filed present suit in trial Court for perpetual injunction. 4 S.A.301.10 6. Defendant filed written statement and resisted the suit claim of the plaintiff and denied right, title and possession of the plaintiff over the suit plot. According to him, the suit plot is open space kept open for road in block No. 598, by its previous owners. According to him, there is no plot in the said block number admeasuring 20’X 50’ feet. It is also denied that plaintiff kept open space of 2½ feet from western side and and 4 feet on eastern side. It is contention of the defendant that one Bhaskar Pimpre was owner of plot No.63 admeasuring 50’ X 40’ out of block no 598, which he has purchased from Prakash Kulkarni on 31.10.1984 by registered sale deed. He had constructed a well in stones and cement of which width was 1.1/2, height was 4 to 5 feet and length was 50 feet. Defendant has purchased it from Bhaskar Pimpre, by registered sale deed and since then he is owner and possessor of the said plot. Defendant also contended that after getting permission from Gram Panchayat for construction of house in December, 2001, when he was out of 5 S.A.301.10 station, plaintiff constructed wall upon his stone wall up to lintel level illegally and unauthorizedly. It is also contended by the defendant that he has planted near about twenty flower plants, three trees of Fanas and one tree of Almond. The flower plants and trees are of three years old. The said plantation is on the western side. Accordingly, defendant urged for dismissal of suit. 7. After assessing evidence on record and considering the Commissioner’s report, trial Court found that the disputed portion is shown by the Commissioner by dotted line in rough sketch map and its width is shown as 2’.7”. It was found that plantation was made by defendant and not by the plaintiff and the disputed portion is in possession of the defendant. On the basis of Commissioner’s report and map, the trial Court considered the said aspect and observed that dispute is pertaining to red dotted line portion shown in Commissioner’s report, but plaintiff 6 S.A.301.10 failed to prove his possession over the said area, and therefore, there is no question of obstruction and interference in his possession at the hands of defendant. Hence, trial Court observed that plaintiff is not entitled for relief of perpetual injunction, as he is not in possession of 20’X50‘ area, though having title over that much area. 8. First Appellate Court also framed issue No.1” “whether the plaintiff succeeded to prove that construction on the suit plot admeasures 20 feet X 50 feet excluding open site 2 ½ feet X 4 feet on Western and Eastern side of suit property?”. After re-appreciating the evidence and considering the rival contentions, First Appellate Court observed that, in the background of the map of such layout, plaintiff has not produced any document of layout to substantiate the contention that the Plot No. 6 is just on boundary of land Gut No. 598. There was no road at all towards eastern side of that plot. The map annexed with the permission indicates no road in front of alleged permission 7 S.A.301.10 to construct the said plot. Thus, the evidence adduced by the plaintiff itself is deficient for seeking relief of perpetual injunction over the suit property admeasuring 18 feet X 50 feet so far, and consequently the trial Court refused injunction sought by the plaintiff. 9. As regards possession of the plaintiff to the extent of 18 feet X 50 feet of the suit property First Appellate Court observed that the trial Court framed and answered issue No.1 that plaintiff is in possession of the suit property admeasuring 18 X 50 Feet without there being cogent, accurate and authenticate evidence. Hence, finding on issue No.1 deserves to be answered in the negative, but the trial Court while answering that issue observed that plaintiff has proved his possession over area 18 feet X 50 feet. It is contrary to the evidence on record. Besides, the trial Court has not committed any error in appreciating evidence led by both the sides. 8 S.A.301.10 10. Having regard to the material on record and considering the impugned judgments of both the Courts below, I am of the view that reasoning adopted by First Appellate Court cannot be faulted with and no interference therein is called for in Second Appeal. 11. In the circumstances, no substantial question of law could be formulated, and therefore, present Appeal lacks merits, and hence same stands dismissed. Sd/- [SHRIHARI P.DAVARE, J.] MTK