1 sa49-08.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.49 OF 2008 Ganesh Sadashiv Patwardhan ..Appellant Vs Sushilabai D. Kachare ..Respondent -- Ms.Teja Katdare i/b.Ms.Alpa Javeri, for appellant. Mr.Pratapsinh Rananavare, for respondent -- CORAM : R.G.KETKAR, J. DATE : 23 rd FEBRUARY, 2011 P.C: Heard Ms.Teja Katdare, learned counsel for the appellant and Mr.Pratapsinh Rananavare, learned counsel for the respondent. 2] The original plaintiff has preferred this Second Appeal challenging the judgment and decree dated 19 th September, 2007 passed by the learned Adhoc District Judge-2, Raigad in Civil Appeal No.64 of 2000 as also the judgment and decree dated 7 th April, 2000 passed by the learned Civil Judge, Junior Division, Mahad in Regular Civil Suit No.21 of 1992. By these judgments, the Courts below dismissed the suit instituted by the appellant. 3] The plaintiff instituted the suit on 2 nd April, 1992 for declaration that the land shown as `A’, `B’, `C’, `D’ in the hand sketch map annexed with the 2 sa49-08.sxw plaint be declared as owned by him as also for mandatory injunction directing the defendant to remove the encroachment made by her in his property as also for perpetual injunction. It is contended that the defendant had purchased the land situate towards West side of his property on 2 nd March, 1977 from one Bhagirathibai Patankar. The said property is Pentagonal in shape. It was contended that after 1977, the width of the road which was towards North of the defendant’s property was increased by 6 to 8 feet which resulted in decrease in the area of the defendant’s property. The defendant had put fencing between the boundaries of her property and the plaintiff’s property. However, the defendant shifted the fencing from time to time and in the year 1989, started construction for puting permanent fencing wall of stones. The plaintiff objected to this and consequently, the defendant stopped that construction. He contended that the defendant made encroachment towards the Western and Northern portion of plaintiff’s land. It was further contended that the property bearing Pardi No.84 situate towards Northern side of the plaintiff’s land also belongs to the defendant and it was possible to the defendant to encroach over the plaintiff’s land from that side as well. The plaintiff further contended that during the city survey of 1988, the plaintiff’s property, as more particularly described in paragraph one of the plaint, was given Chalta No.53 whereas the defendant’s property situate towards the West was given Chalta No.49 and his other property situate at Northern side was given Chalta No.49/1. The plaintiff preferred appeal before the Consolidation Officer who, in turn, by communication dated 30 th July, 1990, directed the plaintiff to obtain appropriate relief from the Civil Court. On the basis of these assertions, the plaintiff instituted the suit. 3 sa49-08.sxw 4] The defendant resisted the suit by filing written statement. She submitted that the cadestral survey of village Birwadi was carried out in the 1988. The said Department had given papers to both the plaintiff as also defendant along with maps. She denied the contents of the map filed along with the plaint as also encroachment shown by the plaintiff. It was further contended that there was one plinth of stones on the boundary in between the properties of plaintiff, defendant and one Rangnath Joshi. The defendant started erecting a cement wall by demolishing earlier plinth of stones. However, plaintiff did not object to it. 5] On the basis of the rival pleadings, necessary issues were framed and in support of the plaintiff’s case, he examined his son Sadanand as PW 1, Village Development Officer as PW 2 and Cadestral Surveyor as PW 3. The defendant examined her son Mukund on her behalf. After considering the material on record, learned trial Judge dismissed the suit against which, the plaintiff preferred an appeal which was also dismissed. It is against these judgments, the plaintiff has preferred present Second Appeal. 6] Ms.Teja Katdare, learned counsel for the appellant submitted that the Courts below committed serious error in dismissing the suit instituted by the plaintiff. The plaintiff has established his ownership over the land shown as `A’, `B’, `C’, `D’ in the hand sketched map which is annexed to the plaint. Once it is accepted that the plaintiff has established the ownership over the portion shown as `A’, `B’, `C’, `D’, it follows that the Courts below 4 sa49-08.sxw ought to have directed the defendant to remove the encroachment made by her in the plaintiff’s property and also should have issued injunction as sought for. As against this, the learned counsel for the respondent supported the impugned judgment. 7] I have considered the submissions made by learned counsel for the parties. It is not in dispute that the city survey was carried out in village Birwadi during the period from January, 1988 to May, 1988. Plaintiff produced one notice dated 7 th March, 1988 received from Special District Inspector of Land Records which is at page no.125 in file “D”. By that notice, it was communicated to the parties that in case they feel aggrieved by the decision, they should prefer a petition before the competent Court within one year. The learned District Judge has dealt with the aspect as to whether the plaintiff was present at the time when the city survey in respect of his property and defendant’s property was carried out. In paragraph no.10, learned District Judge observed that on the one hand, plaintiff claimed that he was not present at the time of measurement of his property but, on the other hand, he admitted that he was present as per the notice given by the City Survey Officer. The learned District Judge recorded that the plaintiff has not come to the Court with clean hands and has given evasive answers during the course of his deposition. After appreciating the material on record, the learned District Judge ultimately held that the plaintiff has not established his title over the property shown by letters `A’, `B’, `C’, `D’ in the plaint map. 8] After considering the material on record, the Courts below have 5 sa49-08.sxw concurrently recorded the findings of facts. Even if I accept the submissions made by learned counsel for the appellant, at the most it can be said that the findings of facts recorded by the Courts below were wrong or grossly inexcusable, as held by the Apex Court in the case of Bholaram Vs. Ameerchand, (1981)2 SCC 414 that by itself would not entitle this Court to interfere with those findings in the absence of a clear error of law. It cannot be said that the judgments of the Courts below are either perverse or were given in utter disregard of the important material. No substantial question of law arises in this Second Appeal. 9] Hence, Second Appeal is dismissed. No order as to the costs. [R.G.KETKAR, J.]