1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Second Appeal No.452/2010 Gulabrao Zapaji Dhopate (dead) thr. Lrs. Vitthal s/o Gulabrao Dhopate and others Vs. Bandu s/o Punbaji Kshirsagar =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : R.M. SAVANT, J. DATED :19th JANUARY, 2011. Heard Ms. Nita Jog, learned counsel for the appellants and Mr. Gawande, learned counsel for the respondent. The above Second Appeal challenges the judgment and decree dated 22.2.2006 passed in Regular Civil Appeal No.174/2001 by which the decree passed by the Trial Court dismissing the suit dated 3.11.2001 came to be confirmed. The appellant is the original plaintiff, who has filed the suit for removal of encroachment on the site K L M N (area 15' x 10') which was shown in the plaint map and for permanent injunction. It was the case of the plaintiff that plot no.9 was allotted to him from out of sanctioned layout of 2 field survey no.290/2 vide revenue case no.32/LNA/22/89-90 of Bhoogaon. On the discord between his father and father-in-law, the defendant requested for possession of the portion of the suit plot for a temporary residence for a period of four months. It was the case of the plaintiff that the defendant erected a kaccha zopdi on the area of 15' x 10'. It was further the case of the plaintiff that he sought possession of the plot occupied by the respondent some time in 1999. However, the respondent refused to accede to the said request and was trying to further encroach upon the other portion of the plot towards Western - Northern side by erecting thorny fencing. The plaintiff had filed police complaint on 22.7.1999 in that regard. On the refusal of the defendant to vacate the plot in question, the plaintiff Gulabrao filed the said Regular Civil Suit No.378/1999 for removal of encroachment, possession and mandatory and permanent injunction. The said suit was resisted by the defendant by filing his written statement. He denied the case of the plaintiff. It was his case that layout prepared of 270/2 was of 18 plots and that he had applied to the Tahsildar, who granted his application and asked him to deposit Rs. 827/- which he deposited on 3 12.10.992 and he was accordingly granted Patta of plot no.13 of the area of 10'x 15' ft. It was his case that on the said plot he has constructed his house and started residing and the encroachment was denied by him. It appears that the layout of the said survey no.270/02 was realigned in the year 1995-96 and the original plot no.14 allotted to the plaintiff was cancelled and new plot was allotted to the plaintiff being plot no.9 of which Taba Pawti was given to him on 21.5.1995. The Trial Court framed relevant issues and answered them against the plaintiff. The Trial Court, as can be seen from paragraph 9 of its judgment, recorded a finding that from the version of the plaintiff and defendant, it is clear that present plot no.9 was renumbered as plot no.13 by the Tahsildar from the documents Exhibit 36 and 37. The Trial Court further recorded a finding that it becomes very clear that defendant Bandu Kshirsagar was allotted plot no.13 i.e. suit plot, area 10' x 15' meters and in occupancy right. In the same paragraph, the Trial Court has observed as follows:- “In fact the original plot no.13 is the new Plot no.9 and the subject matter of patta Exh. 37 which was issued to defendant and Patta Exh. 22 issued in favour of the plaintiff is the same”. 4 Thereafter the Trial Court has in para 10 of its judgment recorded a finding insofar as Issue nos.2 and 3 are concerned that the defendant “was granted ownership right over the suit plot no.9(old plot 13).” The Trial Court after recording a finding as mentioned here in above answered the issues against the plaintiff. Being aggrieved by the decree of dismissal of the suit dated 3.11.2001 the plaintiff filed Appeal being Regular Civil Appeal No. 174/2001. The First Appellate Court also answered issues against the plaintiff and dismissed the appeal. The finding recorded by the Trial Court as referred here in above in paragraph 9 and 10 of its judgment were not dealt with by the First Appellate Court. After dismissal of the Appeal, the plaintiff on account of recording of the said finding by the Trial Court in the teeth of the observations made in para 9 extracted as above also filed review application being MJC No. 33/2006 invoking Section 114 of the Code of Civil Procedure. The said review application came to be rejected by the learned District Judge, Wardha on the ground that the Appeal has already been disposed of and there are no grounds for review and that the 5 plaintiff/appellant may pursue his remedy in the higher Court. As indicated above, it is the decree passed by the both the Courts below which is the subject matter of the above Second Appeal. Heard the learned counsel for the parties. The learned counsel for the appellant contended that in the light of the observations made by the Trial Court as mentioned herein above in paragraph 9 of its judgment, it was highly improper for the Trial Court to record the finding as regards the ownership of the defendant in respect of plot no.13. The learned counsel would contend that the Trial Court in view of the fact that Exhibit 37 and 22 were in respect of the same subject matter could not have recorded a finding of ownership in favour of the defendant. The learned counsel would further contend that the Appellate Court without considering the said aspect has dismissed the Appeal and when the review application is filed, the same has also been rejected thereby the Appellate Court has glossed over the said issue. The learned counsel would further contend that how in a suit filed by the plaintiff for removal of encroachment and injunction, a declaration could be issued in favour of the defendant. 6 Per contra, the learned counsel for the defendant could not in the teeth the observations and findings of the trial Court as recorded in paragraph 9 could not controvert the submissions of the learned counsel for the appellant with any conviction. The substantial question of law that would arise in the above Second Appeal is viz. “Whether in the light of Exhibit 37 and 22 the Trial Court could have recorded a finding that the defendant was granted ownership over the suit plot no.9”. Having heard the learned counsel for the parties, in my view, there is merit in the submission of learned counsel for the appellant/plaintiff that in the teeth of observations made by the Trial Court in paragraph 9 the finding recorded by the Trial Court in paragraph 10 was totally unjustified and unwarranted. The Trial Court was not concerned with the issue of ownership of the defendant but was concerned as to whether the plaintiff had proved his ownership over the plot in question and whether the defendant had carried out any 7 encroachment on the said plot and how the declaration of the ownership of the defendants in the manner could be issued therefore begs the question. In my view, in the light of Exhibit 37 and 22 which were the documents on which the reliance was placed by the respective parties. The Trial Court ought to have framed an issue as regards whether plot no.14 is renumbered as plot no.9 as is the case of the plaintiff or whether plot no.13 is renumbered as plot no.9 as is the case of the defendant. In my view, without resolving the said controversy which goes to the root of the matter, it was not proper for the Courts below to adjudicate upon the said suit and issue a declaration of ownership in favour of either of the parties. Both the impugned judgments and decrees of the Courts below would have to be set aside and the matter would therefore, have to be relegated back to the Trial Court for a denovo consideration after framing a proper issue on the basis of Exhibit 37 and 22 is mentioned herein above. The Trial Court is directed to hear and decide the suit as expeditiously as possible and not later than 31st October, 2011. 8 The Second Appeal is accordingly allowed with no order as to costs. JUDGE Ambulkar