1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.23 OF 2009 1 Ganesh s/o Trimbakrao Mate 2 Anna s/o Balaji Madke Appellants Versus 1 Sandu s/o Shripati Iukarge, 2 Ramnath s/o Sandu Ukirde 3 Laxman s/o Sandu Ukirde (Dismissed as against R.No.3 vide Court’s order dated 12.08.2008) 4 Shivaji s/o Sandu Ukirde Respondents Mrs.M.A.Kulkarni, advocate for appellants. Mrs.P.V.Langhe, advocate for Respondents No.1, 2 & 4. CORAM: R.M.BORDE, J. DATE : 21st July, 2009. P.C.: 1 This is an appeal by original plaintiffs raising exception to the concurrent findings recorded by the Courts below. 2 Plaintiffs instituted a suit bearing Regular Civil Suit No.454/99 claiming decree for possession of alleged encroached portion of land to the extent of 2 acres as well as decree in respect of perpetual injunction restraining defendants from interfering in peaceful possession of plaintiffs. According to the plaintiffs, they are owners of land G.No.107 admeasuring 2 3 hectares 74 ares, situate at village Karmad, taluka and district Aurangabad. It is alleged that defendants are adjoining land owners having land of their ownership bearing G.No.106. It is the contention of plaintiffs that defendants have committed encroachment over the suit property from western side since 1997. Plaintiffs got their land measured through T.I.L.R., on 07.06.1997, which shows the encroachment over land belonging to the plaintiffs, at the hands of defendants to the extent of 81 ares. Plaintiffs, as such, claimed recovery of possession of encroached portion as well as further claimed relief of grant of decree for perpetual injunction in respect of suit property, more specifically described in the plaint. 3 Defendants appeared and controverted the contentions by filing written statement. Defendants contend that plaintiffs had earlier instituted a suit bearing R.C.S. No.1080/98 claiming decree of perpetual injunction simplicitor. Plaintiffs had withdrawn said suit subsequently. At the time of presentation of said suit, plaintiffs did not claim relief in respect of recovery of possession of 2 acres land. Defendants contend that they have not committed encroachment upon the property belonging to the plaintiffs. Defendants, as such, prayed for dismissal of the suit. 4 The trial Court, after recording evidence of the parties, found that plaintiffs have failed to substantiate their case. As such, dismissed the suit. The judgment and decree passed by the trial Court was subjected to challenge at the instance of plaintiffs in Regular Civil Appeal No.186/2003. The appeal came to be heard and disposed of by the IV Ad hoc Additional District Judge, Aurangabad, who was pleased 3 to dismiss same by judgment and decree dated 14.10.2004. 5 I have heard arguments advanced by learned Counsel for parties. It has been urged by learned Counsel appearing for appellants that the Courts below have erred in recording a finding that the relief claimed by plaintiffs is not capable of being granted in view of presentation and withdrawal of earlier suit on the basis of principle of estoppel. Learned Counsel for appellants has further contended that the finding in respect of commission of encroachment at the instance of defendants arrived at by the Courts below is contrary to the record. 6 I have perused the judgments delivered by both the Courts below. It transpires from perusal of the pleadings raised in R.C.S. No.454/99 that the defendants have encroached upon agricultural property belonging to the plaintiffs since 1997. The date of cause of action for presentation of the suit is stated to have occurred on 30.04.1997, further on 07.06.1997 and same is stated to be continued. The plaintiffs have not disclosed in the plaint as regards presentation of earlier suit claiming decree of perpetual injunction against defendants in the instant suit presented by them. Defendants, by presenting written statement, have disclosed the fact regarding presentation of earlier suit by plaintiffs bearing R.C.S. No.1080/98 claiming decree of perpetual injunction. Obviously, it is to be noted that the suit claiming decree of simplicitor injunction was presented by plaintiffs in the year 1998. The cause of action in respect of claiming recovery of encroached portion was available to them when they presented earlier suit in the year 1998. In the instant suit, plaintiffs have prayed that the cause of action for presenting 4 suit has occurred on 07.06.1997. Thus, it is clear that although the cause of action for presenting the suit was available when plaintiffs instituted earlier suit, they have not claimed relief in respect of recovery of possession of encroached portion. Thus, in my opinion, the Courts below are justified in drawing an inference that the relief claimed in the instant suit is not capable of being granted in view of Order II Rule 2 of the Code of Civil Procedure. It is also to be taken note of that the plaintiffs have not disclosed the fact in respect of presentation of earlier suit by them in the plaint and have suppressed the same. Plaintiffs have not come to the Court with clean hands and as such, they are not entitled to seek equitable relief. 7 Another aspect, that is required to be taken note of, is that plaintiff no.1, in his deposition, has in terms admitted that he had applied for measurement successively on four occasions. After getting the land measured on 07.06.1997, he was not satisfied in respect of measurement of the land and he had applied for measurement thereafter and got the land measured on three different occasions. He has also stated in his deposition that he is not even satisfied in respect of the measurement conducted by T.I.L.R. On 07.06.1997. It is also to be taken note of that although plaintiff relies upon the measurement carried by T.I.L.R. On 07.06.1997, notice in respect of said measurement does not appear to have been issued to the defendants. Apart from that, the land belonging to defendants, who are adjacent land owners, has not been measured. In such circumstances, without measuring the land of adjoining landholder, plaintiffs cannot claim decree in respect of removal of encroachment alleged to have been committed by adjacent land 5 owners. In my opinion, relief claimed by plaintiffs is neither liable to be granted on principles of Order II Rule 2 of the Code of Civil Procedure, nor considering merits of the matter, plaintiffs are entitled to seek any reliefs. The plaintiffs have not approached the Court with clean hands. They have suppressed from the Court the fact in respect of presentation of suit on earlier occasion seeking decree of perpetual injunction. The plaintiffs are guilty of withholding material facts from the Court. Both the Courts below have properly appreciated the evidence placed on record and there is no error in reaching conclusions. No substantial question of law arises for consideration in the Second Appeal. Appeal is devoid of merit and deserves to be dismissed. 8 Appeal is dismissed summarily. No order as to costs. (R.M.BORDE) JUDGE ******* adb/sa2309