1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 268 OF 2001 Laxman s/o Genu Yadav .. APPELLANT VERSUS Pandharinath s/o Sayaji Yadav & others .. RESPONDENTS Shri M.M. Ambhore with Shri P.M. Gaikwad, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 5 th September, 2009 PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment passed by the Additional District Judge, Shrirampur on 10-7-2000 in Regular Civil Appeal no. 424 of 1986 whereby the appeal presented by original defendants came to be allowed and the judgment and decree passed by the trial court in Regular Civil Suit no. 111/1979 came to be set aside. 2 Plaintiff instituted suit claiming recovery of possession of 78 R land allegedly encroached by the defendants. Plaintiff claims ownership over land gat no. 218 whereas it is contended that the land gat no. 219 is 2 possessed by the defendants. In substance, allegation of the plaintiff is that the owner of land gat no. 219 i.e. defendants herein have committed encroachment over land belonging to the plaintiff i.e. gat no. 218. 3 Trial court after recording evidence of the parties found favour with case put up by the plaintiff and decreed the suit. Judgment and decree passed by the trial court however has been set aside by the first appellate court. The first appellate court has reversed the judgment mainly on the ground of non-joinder of necessary party. Plaintiff has based his claim on the evidence in respect of measurement alleged to have been carried out by the surveyor. Measurement carried out by the surveyor is restricted only to the land belonging to the plaintiff. It is admitted position that the land belonging to the defendants bearing gat no. 219 or 220 which is situate on northern side of the land belonging to the plaintiff has not been measured by the surveyor. In the absence of measurement of the adjoining land belonging to the defendants against whom allegation is made in respect of commitment of encroachment, it cannot be ascertained and held that the defendants are only responsible for the alleged encroachment. It has not been brought on record as to how much area is in possession of the defendants and as to whether they are possessing some excess land. Apart 3 from this aspect, defendants have raised defence in respect of non-joinder of necessary parties which found favour with the first appellate court and the first appellate court has reversed the decree on the ground of non- joinder of necessary parties as well. It is stated in paragraph no. 6 of the written statement of the defendants that land gat no. 219 belongs to Sayaji, Keshav and Yeshwanta who were the brothers. On their demise their sons effected partition amongst themselves. The land was previously numbered as 98/2. One part of the said land had fallen to the share of Sayaji and three parts had fallen to the share of Keshav. Yeshwanta also had three sons. Gat no. 218 is also divided amongst the heirs of the original owner. According to the defendants all the parties who are sharers in land gat no. 219 and 218 are necessary parties. It is logical that in order to ascertain as to who is responsible for committing the act of encroachment, it is necessary that all the sharers of gat no. 219 shall be implicated as defendants in the litigation. Moreover, it is necessary that the land gat no. 219 including share of each of the defendants so also land gat no. 218 and share of each of the sharers in the said land is required to be measured in order to ascertain the extent of encroachment and as to who is responsible for committing such encroachment. This exercise does not appear to have been carried out by the plaintiff. First appellate court was therefore justified in turning down the 4 case of the plaintiff on the ground of non-joinder of necessary parties. I am of the opinion that the reasons recorded by the first appellate court are proper and do not call for any interference. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 4 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa268.01.odt 5 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 5532 OF 2009 WITH CIVIL APPLICATION ST.NO. 10123 OF 2009 IN SECOND APPEAL NO. 268 OF 2001 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 5 th September, 2009. 1 These are the applications for bringing on record the legal heirs of deceased appellant Laxman as well as for condoning delay of 1384 days occurred in presenting the application so also for setting aside the order of abatement. 2 Heard learned counsel for the the applicants. For the reasons stated in the applications, applications are allowed. delay of 1384 days occurred in presenting the application stands condoned. Legal heirs of deceased appellant Laxman are permitted to be brought on record. Order of abatement as regards the concerned appellant stands set aside. Civil applications stand disposed of. ( R. M. BORDE, J.) dyb / office /sa268.01.odt 6 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 5533 OF 2009 WITH CIVIL APPLICATION NO. 5535 OF 2009 IN SECOND APPEAL NO. 268 OF 2001 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 5 th September, 2009 1 These are the applications for bringing on record legal heirs of deceased respondent nos. 2(i) and 3 by condoning delay as well as for setting aside abatement of appeal as against the concerned respondents. 2 Heard learned counsel for the applicants. For the reasons stated in the application, application is allowed. Legal heirs of deceased respondent 2(i) and 3 are permitted to be brought on record. Order of abatement passed on 12-9-2008 stands set aside. Delay in preferring application stands condoned. Civil applications stand disposed of. ( R. M. BORDE, J.) dyb / office /sa268.01.odt 7