1 sa622 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION SECOND APPEAL NO.622 OF 2011 Mahadev Vithu Patil ...Appellant vs. Ramling Sah.Dhudh Vyavsaya Sanstha Ltd. & anr. ...Respondents Mr.B.A.Walimbe for the appellant Mr.Pratap Patil for the respondent Nos.2 & 3 CORAM : A.S.OKA,J. DATE : NOVEMBER 23, 2011 P.C.: 1 Heard learned counsel for the appellant. The appellant is the original second defendant and the first defendant is the original plaintiff. A suit for removal of encroachment was filed by the first respondent. The Trial Court decreed the suit. The Appeal preferred by the appellants has been dismissed by the District Court. 2 The dispute related to C.T.S.No.1633 admeasuring 219.9 sq.meters situated at Rethare Dharan, Taluka Walwa, District Sangli. A prayer for removal of encroachment was made as regards the area of 15 sq meter out of C.T.S.No.1633 which is described as property `B in the suit. 3 In the plaint, there is a reference to earlier R.C.S.No.252 of 1992 filed by the first respondent as well as R.C.S.No.218 of 1992 filed by the present 2 sa622 appellant and the first defendant in the present suit. Reliance is placed on the consent decree. It appears that one of the contentions raised by the appellant before the Trial Court was that the suit was hit by bar created under Rule 2 of Order II of the Code of Civil Procedure,1908. 4 The submission of the learned counsel for the appellant is that in earlier suit being R.C.S.No.252 of 1992, the first respondent failed to make a prayer for removal of encroachment and the consent terms filed in the said suit shows that there was already encroachment made by the appellant. He submitted that the prayer for removal of encroachment could have been made at that stage, but that was not done and therefore, the first respondent was estopped from filing a fresh suit in as much as the said prayer was given up. 5 I have considered the submissions. On the date when the earlier suit was filed, admittedly there was no encroachment made by the appellant. Even assuming that the encroachment was made during the pendency of the said suit, bar of Rule 2 of Order II of the said Code will not be attracted as on the date of institution of the suit, there was no cause of action available for the first respondent to file a suit for removal of encroachment. Under the consent decree passed in the earlier suits, both the parties admitted the correctness of the survey carried by the City Survey Officer. The Courts below and in particular the Appellate Court recorded a finding that the said survey map was accepted by the 3 sa622 appellant. In the said survey map, encroached portion in respect of the which decree has been passed has been clearly shown. 6 The learned counsel for the Appellants tried to submit that bar of res-judicata will be attracted. However, the earlier suit was not disposed of on merits but it was disposed of by a consent decree. Therefore, no legal bar is shown to the present suit. Encroachment is established on the basis of the survey map which was admitted by both the parties. 7 Hence, no substantial question of law arises. Second Appeal is dismissed with no order as to costs. Civil application no.960 of 2010 does not survive and the same is disposed of. JUDGE