1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.324 OF 2009 WITH CIVIL APPLICATION NO.10584 OF 2008 Shivram s/o Lahu Patil, R/o-Maskawad Sim, Tq-Raver, Dist-Jalgaon. ...APPELLANT. VERSUS Sarpanch Grampanchayat Maskawad-sim & Khurd, Tq-Raver, Dist-Jalgaon. ...RESPONDENT. ... Mr.A.I. Deshmukh Advocate for Appellant. Mr.S.B. Yawalkar Advocate for Respondent. ... CORAM: K.K. TATED, J. DATE : 8TH JULY, 2009. PER COURT : 1. Heard learned counsel Mr. Deshmukh for Appellant - original plaintiff and learned counsel Mr. Yavalkar for 2 Respondent - original defendant. 2. Present Second Appeal arises out of the Judgment and decree dated 30th April, 2008 passed by Ad-hoc District Judge-II, Jalgaon in Regular Civil Appeal No. 192 of 2003 arising out of the Judgment and decree dated 6th August, 2003 passed by Civil Judge, Junior Division, Raver in Regular Civil Suit No.111 of 2000. Both the Courts below concurrently held that the Appellant - original plaintiff is not entitled to mandatory as well as perpetual injunction against the defendant in respect of open space in front of his house No.458. 3. It is the case of the Appellant- original plaintiff that he is owner and occupant of House No.458 of village Maskawad-Sim, Tq-Raver, Dist-Jalgaon. In front of his house, there is open space belonging to the defendant. He states that said open space is though belonged to the defendant, for last several years he is using the same. He further states that the defendant passed resolutions in the year 1976 and 1987 giving no objection to the plaintiff to use of the said open space, which is in front of plaintiff's house and now the defendant issued 3 notice to the plaintiff for removing fencing and they decided to construct a shopping complex there. 4. On the basis of the pleadings of the parties, the trial Court framed following issues in the Suit: ISSUES FINDINGS 1) Does plaintiff prove his lawful possession over the suit plot? In the negative. 2) Does plaintiff prove that the defendant illegally trying to make the construction of shopping complex on the suit plot? In the negative. 3) Does plaintiff prove that the defendant illegally removed the wire fencing of the suit plot? In the negative. 4) Whether the plaintiff is entitled for mandatory injunction as prayed? In the negative. 5) Whether the plaintiff is entitled for perpetual injunction as prayed? In the negative. 6) Whether order and decree? As per final order. 5. The trial Court as well as first appellate Court held that the plaintiff failed to prove his lawful possession over the suit plot of land. Though the plaintiff's case is that the Grampanchayat has passed resolutions in the year 1976 and 1985 giving no objection to the plaintiff to use the space which is in 4 front of his house, but the plaintiff himself admitted in the cross examination that the portion of land was not allotted to the plaintiff as per resolution. If the plaintiff himself says that he is not in possession of the suit plot of land, he is not entitled for perpetual injunction restraining defendants from using their plot of land. In any case the trespasser cannot ask injunction against the true owner. The Apex Court in the matter of Premji Ratansey Shah and others vs. Union of India and others, reported in (1994) 5 Supreme Court Cases, 547 held that no injunction can be issued in favour of trespasser or a person who gained unlawful possession as against the true owner. Para 5 of the Judgment reads as under: "5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they have any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour 5 of a trespasser or a person who gained unlawful possession as against the true owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against the true owner." 6. Therefore, I do not find any substance in the present case as the plaintiff himself admitted that he is not in possession of the suit plot as per resolution passed by the defendants in the year 1976 and 1985. In view of these facts there is no substance in the present Second Appeal and the same is dismissed. 7. In view of the dismissal of the Second Appeal itself nothing survives in Civil Application No. 10584 of 2008 and the same is rejected. [K.K. TATED, J.] asb/JUN09/sa324.09