1 SA 27.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 27 OF 2011 Vesta Bomchya Bhil (Died) Through L.Rs. and others. .... APPELLANTS VERSUS Bhurya Tembharya Pawara (Died) through L.Rs. & Oths. .... RESPONDENTS Mr. J.R.Shah, Advocate for the appellants. CORAM : S.V. GANGAPURWALA, J. DATE : 07/03/2011 ORAL ORDER : 1. Heard the learned counsel for the appellants. 2. This is defendants’ Second Appeal. The present respondent/original plaintiff had filed Suit for possession by removing encroachment of the defendants i.e. four ( 4 ) huts as narrated in the plaint. The Trial Court as well as lower appellate Court decreed the Suit. The Suit proceeded without Written Statement. 2 SA 27.2011 3. Mr. J.R.Shah, learned counsel for the appellants strenuously contended that though the defendants did not file Written Statement, the plaint could not have been entertained by the Courts as it did not comply with the provisions of Order VII Rule 3 of the Code of Civil Procedure. It is a case of removal of encroachment. The provisions of Order VII Rule 3 of the Code of Civil Procedure have to be complied. The said provision is mandatory. In absence of the same, no decree could have been passed. The learned counsel referred to para no. 5 of the plaint and the prayers made therein. 4. The learned counsel for the appellants further contends that opportunity ought to have been given for filing the Written Statement. The learned counsel states that the appellants may put to terms and the appellants may be given opportunity to file Written Statement and contest their claim as the parties are illiterate and coming from backward area. 5. With the assistance of the learned counsel for the appellants, I have gone through the Judgments and the provisions referred supra. 6. From the perusal of the Judgment, it is manifest that seven ( 7 ) times the matter was adjourned to enable the defendants to file Written Statement. The Appeal was filed in the year 1991 before the lower 3 SA 27.2011 appellate Court and the matter was pending for nineteen ( 19) years before the said Court. Even then the appellants did not file the Written Statement. As such it can not be said that the appellants did not have proper opportunity to file Written Statement. No doubt, the provisions of Order VII Rule 3 of the Code of Civil Procedure have to be followed in cases of Suits concerning removal of encroachments i.e. the sketch map has to be filed along with plaint so as to demarcate the property. In the present case, the plaintiff had contended that the defendants have constructed huts in their land. There is no denial on the part of the defendants about this fact and the question was about removal of the huts from the said lands. The huts are identifiable. It was not the case of removal of encroachment of open land, but removal of huts constructed therein. The huts can be properly identified and for the same, non filing of the sketch map was not an impediment for the Court to grant decree, more particularly, when there was no denial about the said fact. 7. Even perusal of the Appeal memo before lower appellate Court shows that the factum of identity was never disputed nor the same was ever raised. 8. In the light of the above, the Appeal does not involve any substantial question of law and hence is dismissed, however with no order 4 SA 27.2011 as to costs. 9. In view of dismissal of Second Appeal, the Civil Application does not survive and is also dismissed. [S.V. GANGAPURWALA, J.] knp/SA 27.2011