1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.119 OF 1993. Nanded Municipal Council, Nanded, through its Chief Officer, Nanded. ... Appellant. Versus Prakash S/o Bajrang Rathod. ... Respondent. ... Mr.M.V.Deshpande, advocate for the appellant. Mr.P.V.Mandlik, Sr.counsel for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 11.11.2009. ORAL JUDGMENT : 1. Challenge in this appeal is to judgment rendered by learned 4th Additional District Judge, Nanded, in an appeal (RCA No. 261/87), whereby judgment rendered by the trial Court, dismissing the suit (RCS No.14/86) for 2 perpetual injunction, came to be reversed. 2. The Respondent - Prakash filed suit for injunction simpliciter alleging that an open plot described in the claim clause was allotted to him by village Panchayat Nasratpur on 15.5.1975 by virtue of a letter issued by Sarpanch. He has constructed a shed over the said plot. He alleged that he is residing in the shed since 1975 and the open plot is carved out from land S.No.12 which is situated at village Jangamwadi. He alleged that the said plot was not within the Municipal limits, yet, Nanded Municipal Council was trying to dispossess him. It was the case of defendant Municipal Council that Grampanchayat Nasratpur had no concern with the plot in question. It was alleged that plaintiff Prakash had encroached over the suit plot since 31.12.1985 and has raised unlawful structure of temporary shed thereon. According to Nanded Municipal Council, notice was issued U/s 179 of the Maharashtra Municipalities Act, 1965 and plaintiff Prakash was called upon to remove the encroachment caused by him. Instead of removing 3 the encroachment, he manipulated false record and laid false claim. 3. The case of Nanded Municipal Council was that the suit plot is part and parcel of land S.No.54 situated at Asadullabad, which is within the limits of Municipal Council. Therefore, the plot in question could not have been allotted to plaintiff Prakash by the village Panchayat, Nasratpur. So it was urged that the suit may be dismissed. 4. The parties went to trial over certain issues framed by the learned Civil Judge below Exh.22. They adduced oral and documentary evidence in support of the rival contentions. The learned Civil Judge held that the open plot described in the claim clause was not part of S.No.12 situated at Jangamwadi but was part of S.No.54 and was within limits of Nanded Municipal Council. The learned Civil Judge held that the village panchayat had no authority to grant the said plot nor, in fact, it was granted in favour of plaintiff Prakash. The learned Civil Judge 4 came to the conclusion that plaintiff Prakash did not file genuine documents. It was further held that the plaintiff had not come to the Court with clean hands. It is categorically observed that he had tried to submit forged record before the Court. Therefore, the suit was dismissed. 5. The learned Additional District Judge, however, rendered converse findings and decreed the suit. 6. The Second Appeal was admitted on substantial questions of law which are enumerated in grounds 2,4, 6 and 7 of the Appeal Memo. Unfortunately, the substantial questions of law have not been clearly crystalised and, therefore, instead of reproducing such grounds, I deem it proper to redraft the substantial questions of law as follows : "(i) Whether in the facts and circumstances of the present case, the first appellate Court committed patent error while misreading the evidence or 5 overlooking the material facts as regards location of the plot and that it could not have been held that the said plot is part and parcel of S.No. 12 situated at Jangamwadi but it ought to have been held that it is part of S.No.54 situated at Asadullabad and is within the limits of Nanded Municipal Council.? (ii) Whether in the facts and circumstances of the present case, the Respondent (plaintiff) ought to have been non-suited when it was noticed that he had filed the claim on the basis of forged or fabricated documents.?" 7. Heard learned counsel for the parties. 8. At the outset, it is significant to notice that plaintiff Prakash came out with a case that the plot was allotted to him by the village Panchayat Nasratpur, during course of implementation of a scheme to provide houses to 6 homeless persons. He did not produce any tangible evidence to show that such kind of scheme was being operated at the relevant time nor there is any resolution of the Village Panchayat to support his contention regarding implementation of the so-called scheme which was implemented in order to provide plots to homeless persons. Admittedly, the suit plot bears City Survey No.9228. The plaintiff filed a certified copy of the City Survey map Exh.46 which purports to show that the plot in question is occupied by him. It is important to notice that the name of village Asadullabad is scored out from the top portion of the said copy and the words "Jangamwadi" (............) are interpolated in different ink. There is reliable evidence to show that the City Survey Officer himself has made such interpolation and rectification. The entries at the back side of the document would show that the copy was in respect of Toch map pertaining to village Asadullabad. It appears that the name of village Asadullabad is scored out though initials are put, yet, who has put the initials and how the original record tallies with 7 the map (Exh.46) is not made clear from the evidence tendered by plaintiff Prakash. The trial Court, therefore, noticed that he relied on a forged document. 9. Much emphasis was laid on testimony of PW Mhasaji. He was Sarpanch of village Nasratpur in 1975. He stated that he had issued construction permission as per application of plaintiff Prakash. He stated that S.No.12 is not within the limits of Municipal Council. According to him, he issued allotment letter to plaintiff Prakash because the latter was homeless person. His testimony does not show that any scheme as such was being implemented to provide plots to homeless persons. He was unable to state where the plaintiff resides. He states that allotment of the plots are entered into the concerned Register. He did not bring the relevant register with him while he was in the witness box. There is no resolution of the village Panchayat regarding lawful allotment of the plot. Thus, it appears that the so-called allotment letter dated 15.5.1975 (Exh.52) and the construction permission (Exh.53) are issued by 8 the said Sarpanch without any lawful authority. 10. As against this, there is copy of Toch map accompanied by panchanama (Exh.55) which shows that the suit plot is part and parcel of S.No.54 situated at Asadullabad which is within the limits of Municipal Council. The boundary limits of village Jangamwadi and Asadullabad are separate and these villages are bisected due to middle road which goes towards Nanded city from Taroda. It is conspicuous from version of DW Kashinath Sinha that the suit plot was encroached over by plaintiff Prakash. 11. The first appellate Court observed that S.No.12 was not acquired by the Municipal Council and the suit plot was carved out from S.No.12 of Jangamwadi. In fact, there is no foundation for such observations. The learned Judge of the first appellate observed : "In view of the above, it is admitted position that plaintiff's plot is situated within the S.No.12 which is 9 located in village Jangamwadi under Grampanchayat Nasratpur. It is further admitted position that Gram Panchayat allotted the plot to the plaintiff. He has constructed the house over the suit plot by obtaining permission from Gram Panchayat." The above observations of the first appellate Court are per se incorrect and perverse. The appellant - Municipal Council never admitted that the suit plot is part of S.No.12 situated at village Jangamwadi nor it was admitted that the Gram Panchayat had allotted the plot to the plaintiff. Needless to say, the first appellate Court misread the evidence and erroneously attributed "admissions" to the appellant which never had been the fact situation. It is explicit that claim put forth by plaintiff Prakash was based on the document (Exh.46) which was found to be untrue. He has not approached the Court with clean hands. Hence, he was not entitled to seek the discretionary relief of injunction. The findings of the first appellate 10 Court are based on totally erroneous consideration of the record and are perverse. 12. Considering the foregoing reasons, the impugned judgment is unsustainable. The Respondent (plaintiff) Prakash is not entitled to seek injunction. His suit was rightly dismissed by the trial Court. Hence, the appeal is allowed. The impugned judgment rendered by the first appellate Court is set aside and that of the trial Court is restored. No costs. (V.R.KINGAONKAR,J.) asp/office/sa11993 Authenticated Copy (Pvt.Secy. to Hon'ble Judge)