1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTIION SECOND APPPEAL NO. 132 OF 2008 SECOND APPPEAL NO. 132 OF 2008 SECOND APPPEAL NO. 132 OF 2008 WITH CIVIL APPLICATION NO. 399 OF 2008 WITH CIVIL APPLICATION NO. 1148 OF 2008 Smt. Anusaya Vishwakant Machhi ... Appellant (Orig. Plaintiff) Versus Deputy Conservator of Forest & Anr. Respondents Mr. S.H.Joshi, Advocate, for the appellant. Mr. S.N.Gawade, AGP, for respondents Nos. 1 & 2. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 10th July, 2008. DATE: 10th July, 2008. DATE: 10th July, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. This Second Appeal is filed by the original plaintiff after having lost the suit as well as the appeal. According to the plaintiff, she is in possession of the suit house on a part of Survey No.247. The land has been transferred by the Forest Department to the Revenue Department as per the 2 Mutation Entry No.1937 and 1938. According to her, on 29.9.2001, the Deputy Conservator of Forest issued a notice to the plaintiff/appellant to show cause why the illegal construction on forest land should not be demolished. Thereafter, the Deputy Conservator of Forest passed an ex-parte order on 16.10.2001. On that basis,a notice was issued to the plaintiff on 29.10.2002 for demolition. This notice was challenged in the suit mainly on the ground that the land does not belong to the Forest Department. The learned Counsel for the plaintiff/appellant pointed out that the Revenue Circle Inspector had issued a certificate on 2.12.2000 to the effect that the said land has been transferred to the Revenue Department since 1937. However, this document was not produced before the trial Court. The plaintiff/appellant made an application before the first appellate Court seeking to produce the said document with a request that the document be taken into consideration by the appellate Court. The learned Counsel contends that no order was passed on that application and the document was not taken into consideration. He seeks to produce a copy of that document by Civil Application No.1148 of 2008. 3. After perusal of the impugned judgment, it is clear that this document was not taken into 3 consideration by the trial Court. In my considered opinion, this document, if found to be genuine, may go to the root of the case. If the land belongs to the Revenue Department, the Forest Department may not be competent to take any action against the plaintiff/appellant. Therefore, in the interest of justice, it is necessary to allow production of this document even though it was filed at the late stage in the Appeal. 4. As this important document was not considered by the appellate Court, that itself becomes a question of law before this Court. Taking into consideration the material, I find that the purpose will be served if the Appeal is disposed of by the following order :- (i) The Appeal is allowed. The impugned judgment in Civil Appeal No.85 of 2004 passed by the 2nd Adhoc District Judge, Palghar, is hereby set aside. The plaintiff/appellant is allowed to produce certificate to the Revenue Circle Inspector in respect of Survey No.247. The Appeal is hereby remanded back to the first appellate Court for hearing the parties afresh in the light of the document which the plaintiff/appellant seeks to produce in support 4 of her claim. (ii) All contentions of the parties are left open and this Court has not expressed any opinion on the merits of the case. (iii) The parties shall appear before the first appellate Court on 31.7.2008. The appellate Court shall expedite the hearing and dispose of the Appeal on merits as per law, preferably within six months from this date. (iv) Interim relief, if any, operating in favour of the plaintiff/appellant shall continue to operate till decision of the appeal by District Court. Appeal stands disposed of accordingly. 5. Civil Application No. 1148 of 2008 is allowed in terms of prayer clause (a). 6. As the Appeal itself is disposed of, Civil Application No. 399 of 2008 does not survive and stands disposed of accordingly. Certified copy expedited. 5 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)