1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 1512 OF 2005 Hashmoddin s/o Nabisaheb Bapude Appellant Versus Chief Officer, Municipal Council, Ausa Respondent Mr. B.N. Patil, advocate for the appellant. Respondent though served - absent. ===== CORAM: R.M.BORDE, J. DATE : 24th September, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff instituted Regular Civil Suit no. 101/2002 claiming injunction against the Municipal Council. According to plaintiff, his father purchased the suit house in the year 1960 from one Pachasab s/o Pirsab. On the basis of sale-deed got executed by the plaintiff his name was recorded in the municipal record as owner of the property. Father of the plaintiff died in 1996. The scheme of city survey was made applicable to Ausa town and in the city survey record the suit property was recorded and is given number as 1281, 2 Sheet no. 17. City survey record shows that the total property admeasures 44 ft X 49 ft. An area to the extent of 1/3rd share was alienated in favour of some other individual. Thus, plaintiff remains owner in respect of an area admeasuring 49 X 30 ft. The Municipal Council had issued notice calling upon the plaintiff to remove encroachment. According to plaintiff, the notice issued by the Municipal Council is misconceived. Plaintiff as such seeks restrain order against the Municipal Council restraining the Municipal Council from interfering in possession of the plaintiff. 3 Defendant appeared and resisted the suit by filing written statement. According to defendant, plaintiff is entitled to possess an area to the extent of 47 X 27 ft. In the municipal record also, plaintiff is shown as owner of an area to the extent of 47 x 37 ft. 4 Trial court after recording evidence of the parties, came to the conclusion that the plaintiff has failed to establish his case and as such dismissed the suit by judgment and decree dt. 1-11-2003. Judgment and decree passed by the trial court was subjected to challenge at the instance of original plaintiff in Regular Civil Appeal no. 195/2003 which came to be heard and disposed of by the District Judge, Latur who was pleased to dismiss the same by judgment dt. 17-12-2004. 3 5 I have perused the judgments recorded by both the courts below. Plaintiff in his cross examination has admitted that the measurement of the entire house is 49 X 30 ft out of which he is owner of area to the extent of 2/3rd share which was purchased by his father. Considering this admission so also considering the municipal record, it cannot be said that the plaintiff is entitled to possess an area to the extent of 49 X 30 ft. Evidence in respect of city survey entries has been discarded by the courts below considering the admission of the plaintiff as well as municipal record. The courts below have recorded finding as regards the actual possession and entitlement of the plaintiff in respect of area admeasuring 47 X 27 ft. Findings of fact recorded by the courts below need not be interfered with while exercising jurisdiction under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 In view of dismissal of appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa1512.05.odt