1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1208 OF 2009 WITH CIVIL APPLICATION NO.3257 OF 2009 Shri Baburao S. Sonawane .... Appellants through LRs & ors. Vs. Keshavbhai Patel & Ors. .... Respondents Mr.Ajay S. Patil, Advocate for appellants. Mr. Rameshwar Gite, Advocate for respondent no.1. Mrs. Namita Hemrajan, Advocate for respondent no.2. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 22nd March, 2010 P.C. 1. This First Appeal arises out of the order dated 28th January 2009, by which the Court of Joint Civil Judge, Senior Division, Nashik dismissed Special Civil Suit No.43 of 1998 filed by the appellants. The suit as filed initially was against five defendants. By the time, it was taken up for final hearing, the appellants had settled the dispute with four of the defendants i.e. defendant no.1 and defendants no.3 to 5. The suit was prosecuted only against defendant no.2 i.e. respondent no. 2 herein. 2. Considering the facts and circumstances of the case, the appeal is being disposed off finally at the stage of the admission. Records and Proceedings as well as the paper book is dispensed with. 2 3. Perusal of the plaint and the reliefs sought therein shows that the appellants are not certain as to what they desire to seek. By the first prayer, they sought declaration of their title to the suit property and a negative declaration that the defendants to the suit have no title thereto. Prayer clause (b) was for a declaration that defendants no.1 to 5 have made illegal encroachment on the suit property and for a direction against the defendants to hand over possession of the encroached portion by removing the encroachment. By way of an alternative to prayer (b), the appellants prayed that if it is found that the appellants are not in physical possession of the suit property, then the defendants be ordered to handover physical possession of the suit property to them. The next prayer clause (c) is again for a mandatory injunction for removal of the encroachment caused by defendants no.1 to 6. Prayer clause (d) is for restraining defendants no. 1 to 5 from disturbing possession of the appellants of the suit property and prayer clause (e) is for permanent injunction to restrain defendants no. 1 to 6 from continuing with illegal construction of the suit property. 4. The allegations as regards the encroachment by the defendants are found at paragraph 10 of the plaint, where it is alleged that defendants no. 1 and 3 to 5 are carrying out different independent constructions of housing complexes on the suit property. The plaint does not disclose the nature of 3 construction by these defendants, the extent of progress of construction, the starting point of each construction and the area occupied by each. In other words there are no particulars whatsoever of the construction commenced by these defendants. Though the court is not required to consider the case of the appellants against these defendants since the suit against them stands compromised, the reference to the same is necessary. While considering the allegations against defendant no.2, the plaint will have to be considered as a whole. The trial Court took note of absolute vague nature of the plaint to hold that it does not disclose any cause of action. This finding is irresistible and cannot be interfered with. 5. The allegation against defendant no.2 is of encroachment by construction of a bungalow on the suit land and defendant no.2 is alleged to be in use and occupation of it. These allegations are as vague as the allegations against the other defendants. 6. The trial Court has also noted that the pleadings and the evidence as regards the encroachment do not satisfy the requirement of Order 7, Rule 3 C.P.C.. Since the suit filed is in respect of immovable property, the provision requires that the plaint shall contain description of the property sufficient to identify or state its boundaries or number in the record of settlement or survey. None of these had been stated by the appellants. 4 7. The trial court also held that the suit is barred by the Law of Limitation. The learned counsel for the appellants submits that in view of the averments at paragraph 15 of the plaint, the trial Court ought to have held that the cause of action for the suit arose on 17th January 1998 and if that date is taken into account the suit filed would be within the prescribed period of limitation. The averments pointed out from para 15 read as follows : “15. The cause of action for the suit arose on 17-1-98, when defendant no.1 to 5 have encroached upon the suit property and further they have commenced unauthorised construction upon the suit property and when they have started attempting to uproot the fencing compound of suit property and their illegal acts are still continuing, hence the cause is still continuing as on this day of filing of suit”. These averments cannot come to the rescue of the appellants as against defendant no.2. The date of 17th January 1998 stated therein is of commencement of alleged unauthorised construction by defendants no.1 to 5, which construction was continuing at the time of the suit. The construction by defendant no.2 was however admittedly complete. Therefore the averments at paragraph 15 cannot relate to defendant no.2. In these facts, it was necessary for the appellants to state the date of commencement and also completion of construction by respondent no.2. During the course of evidence, the appellants produced map at Exhibit 124 dated 19th October 1970, which 5 according to them showed encroachment by all the defendants. If this map produced by the appellants is to be accepted, it would mean that the construction by respondent no.2 was complete as on 19th October 1970. Therefore, the trial court drew an inference that the encroachment had taken place atleast on 19th October 1970 and the suit filed beyond the period of 12 years thereafter is barred by Law of Limitation. No fault can be found with this inference either. 8. The learned counsel for the appellants submits that since respondent no.2 had not filed written statement to contest the suit, the Court ought to have passed a decree against him. He also submits that the Court ought to have framed issues in the suit and non framing of the issues was an error committed by the trial Court. Instead of framing of issues, the trial Court framed a single point for consideration, which reads as follow : “Whether the plaintiffs are entitled to the reliefs sought”? 9. I find no merit in any of the submissions advanced by the learned counsel. Non filing of the written statement by itself does not entitle the appellants to a decree against respondent no.2. Even if a defendant to the suit does not contest it by filing written statement, the Court is bound to consider the questions whether the plaint discloses any cause of action and whether the same is filed within the prescribed period of 6 limitation. Further since respondent no.2 had not filed written statement, there was no question of framing issues for decision in the suit. The trial Court rightly raised point for consideration and decide the same. In the circumstances, there is no question either legal or factual arising for consideration of this Court in the present appeal. Hence, the same is dismissed in limine. 10. In view of dismissal of the First Appeal, the Civil Application No.3257 of 2009 does not survive, the same is accordingly disposed of. (SMT.R.P. SONDURBALDOTA,J)