1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 11 OF 2008 Jafarbhai Amirbhai Musalman vs. Smt. Shantabai Gangadhar Kamle Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. JANUARY 29, 2008. Heard Shri Deopujari, learned counsel for the appellant - original defendant and Shri Naidu, learned counsel for the respondent – original plaintiff. The respondent filed suit for removal of encroachment and for possession of 7375 sq, ft. of land, amended to 10518.88 sq. ft. later on. It appears that plaintiff has given on lease a piece admeasuring 35' x 100' of very same land and her contention is that thereafter this encroachment has been done. The suit was opposed by present appellant (original defendant) and the trial Court found that respondent – plaintiff proved her title and also the fact that 3500 sq. ft. was given to defendant on monthly rent. It further held that encroachment on 10518.88 sq. ft. was 2 not proved. It, therefore, dismissed the suit. The plaintiff thereafter filed Regular Civil Appeal No.523 of 2006 which came to be allowed by Ad-hoc District Judge No. 3, Nagpur, on 22.10.2007. The said reversing judgment is challenged before this Court. Shri Deopujari, learned counsel for the appellant has contended that Order 7, Rule 3 of Civil Procedure Code has not been complied with inasmuch as there is no map filed with the plaint showing any encroachment or its extent. He further states that though the suit before the Trial Court was valued treating the land as agricultural land, later on it was discovered that way back in 1967 i.e. much before institution of suit, land was already converted to non-agricultural purpose and hence objection to the valuation of the suit and also to the jurisdiction of trial Court was raised as suit was decided by Civil Judge, Junior Division at Ramtek. Shri Deopujari, learned counsel contends that said objection was erroneously overruled by the trial Court by observing that though there was conversion, land was not put to non- agricultural use. He argues that the land has been admittedly let out to present appellant 3 for running a saw mill and it is therefore a commercial and non-agricultural use. He also relies upon the judgment of this Court dated 22.9.2006 in Second Appeal No. 305 of 2006. He further argues that after the suit was filed, it has been amended by order dated 15.1.2001 to seek removal of encroachment from additional portion i.e. total area of 10578.88 sq. ft. He contends that the plaintiff has stated that during the pendency of Civil Suit No. 251 of 1986, again the present appellant has further encroached. He states that in view of Order 2 Rule 4, this being a subsequent and fresh cause of action, it could not have been added in pending Civil Suit and at the most fresh Civil Suit could have been filed. Shri Naidu, learned counsel for the respondent – plaintiff contends that the fact that land is being used for saw mill was well within the knowledge of present appellant when it filed written statement before the trial Court and no objection to the valuation or jurisdiction was raised at that time. He further states that in view of Section 21 of CPC, such objection at this stage cannot be entertained. He points out that during the 4 pendency of Civil Suit No. 251 of 1986, the Commissioner was appointed and the Commissioner after measuring the site in question reported that there was encroachment on total 10578.88 sq. ft. The map drawn by the Commissioner has been later on adopted as plaint map by the plaintiff by effecting appropriate amendment in the plaint and the said amendment has been replied to by the defendant. He, therefore, contends that the question of non-compliance under Order 7 Rule 3 of CPC does not arise in the present facts and therefore the judgment on which the appellant is placing reliance is not attracted. He further points out that the encroachment has been further committed during the pendency of same suit on additional portion i.e. extent of encroachment has been increased and therefore the amendment was made and amendment was allowed. He, therefore, states that provisions of Order 2, Rule 4 of CPC are irrelevant. After hearing learned counsel, it is apparent that the objection is to the valuation of suit property and therefore the jurisdiction of Civil Judge, Junior Division was not raised at the earliest possible opportunity. The 5 contention that the conversion of land to non- agricultural purpose was learnt by the present appellant afterwards cannot be of assistance to appellant because the appellant was put in possession of the portion admeasuring 35' x 100' for running a saw mill i.e. for commercial and non-agricultural purposes. The objection has been raised for the first time before the appellate Court and before the appellate Court the corresponding prejudice as required by Section 21 of CPC was not pointed out. Even before me no such prejudice has been pointed out. In the circumstances, it is apparent that the Court of Civil Judge, Junior Division, will possess jurisdiction if land is used for agricultural purpose and it may not possess jurisdiction if it is treated as non- agricultural use. Hence, in the absence of specific prejudice as contemplated by Section 21, the issue is of no help in this Second Appeal. The perusal of judgment dated 22.9.2006 delivered by this Court in Second Appeal No. 305 of 2006 reveals that in that matter, there was no serious dispute about the absence of plaint map and therefore non- compliance with the Order 7 Rule 3 of CPC. 6 Here even before the parties began leading their evidence, the map prepared by the Commissioner was adopted as plaint map and defendant got opportunity to meet the allegations and have actually amended their written statement thereafter. It therefore cannot be said that provisions of Order 7, Rule 3 of CPC are not complied with in the present mater. The last objection is about provision of Order 2, Rule 4 of CPC. The provisions of Order 2, Rule 4 permits certain causes of action to be joined in a suit for recovery of immovable property. Thus, it considers certain other reliefs apart from possession of immovable property. It does not bar amendment to the suit already filed on the ground of subsequent encroachment and therefore the need to ask for possession of more portion. The reliance upon Order 2, Rule 4 of CPC in present facts is totally misconceived. I am, therefore, satisfied that no substantial question of law arises in this Second Appeal. Second Appeal is dismissed. However, in the circumstances of the case, there shall be no order as to costs. 7 At this stage, Shri Deopujari, learned counsel for the appellant seeks interim protection so as to enable him to approach the Hon'ble Apex Court in the matter. The request is opposed by Shri Naidu, learned counsel for the respondent. However, considering the fact that the appellant is having his business of saw mill on the plot, time of three months is granted to take further appropriate steps in the matter. The decree of appellate Court challenged before this Court shall not be implemented till then. Interim order granted shall cease to operate automatically after three months. JUDGE *GS.