1 sa668.10 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.668 OF 2010 WITH CIVIL APPLICATION NO.13920 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Coram: Shrihri P. Davare, J. Date : 22.02.2011. 1. Heard Shri S.D. Dhongade, learned Counsel for the appellant-original plaintiff. 2. The appellant-original plaintiff, who filed suit (R.C.S. No.287 of 2004) before the Court of Civil Judge, Junior Division, Jalgaon, for removal of encroachment, allegedly made by Defendant No.1 on southern open side of the temple, by erecting tin shed which allegedly caused obstruction to the worshipers. However, the said suit was dismissed by the learned 6th 2 sa668.10 Joint Civil Judge, Junior Division, Jalgoan, on 31.12.2007. 3. Being aggrieved by the said judgment and decree, present appellant-plaintiff preferred Regular Civil Appeal No.24 of 2008 before the District Court, Jalgaon. However, the said appeal also came to be dismissed by the learned District Judge-I, Jalgaon, on 23.6.2010. Accordingly, there are concurrent findings against the present appellant-original plaintiff and he has challenged both the judgments and orders rendered by the courts below, in the present second appeal. The parties are hereinafter referred to as per their original status i.e. Plaintiff and Defendants. 4. According to the Plaintiff, Gram Panchayat House No. 5957 which is described in paragraph 1 of the plaint, is owned by him. It is alleged 3 sa668.10 that Defendant No.1, in the year 2001, constructed tin shed admeasuring 20' x 24' in an open space towards southern side of house No.5957, by making encroachment (hereinafter referred to as "the suit property"). 5. It is the contention of the plaintiff that he many a times requested defendant No.1 to hand over the suit property to him, by removing encroachment, but defendant no.1 did not respond to the same and, therefore, a registered notice was sent on 11.6.2004 by plaintiff to Defendant No.2 i.e. Sarpanch of Gram Panchayat, Nashirabad, for taking suitable action against defendant No.1, however, Defendant No.2 took no action against Defendant No.1, and hence, plaintiff filed suit for declaration that defendant No.1 made encroachment towards southern side of his house, by constructing tin shed and also for 4 sa668.10 direction to defendant No.1 to remove the encroachment and put the plaintiff in possession of the suit, as well as for mandatory injunction against Defendant No.2 directing it to proceed against Defendant No.1 under the provisions of Gram Panchayat Act, for removal of the said encroachment. 6. Defendant No.1 filed written statement and resisted the suit claim and categorically denied the alleged encroachment. According to him, no cause of action had arisen for the plaintiff to file the suit. It is the case of defendant No.1 that he owns and possesses house bearing gram panchayat No. 6121 which is towards the southern side of plinth (Ota) admeasuring 10 x 10 ft. owned by the plaintiff. According to Defendant No.1, Gram Panchayat, Nashirabad, allotted him plot, about 12-13 years back over which he has constructed a house and 5 sa668.10 since then he has been residing thereon, along with his family members. 7. It is the contention of Defendant No.1 that since Gram Panchayat, Nashirabad had obstructed him, he had to file R.C.S. No.426 of 2000 for perpetual injunction and the same was decreed on 6.1.2001. Thus, the contention of Defendant No.1 is that since he has not made any encroachment upon the open space of the plaintiff as alleged, there is no question of removal of the encroachment and accordingly, Defendant no.1 prayed for dismissal of the suit. 8. Defendant No.2 also filed written statement and supported the claim of Plaintiff. 9. The crucial issue involved in the matter was whether the plaintiff proved that Defendant no.1 had encroached upon his premises towards 6 sa668.10 southern side of his house, by constructing a temporary tin shed admeasuring 20 x 24 ft. However, to substantiate the said proposition, it appears that the plaintiff has failed to produce sketch map on record. Moreover, it also appears that the plaintiff has failed to make survey of his land to ascertain encroachment allegedly made by Defendant No.1. In fact, the Plaintiff should have made efforts to measure his house, as well as house of Defendant No. 1 and thereafter, should have filed suit for removal of encroachment and injunction, but apparently, no such attempt was made by the plaintiff and, therefore, there is no substance in the suit filed by him and the same was rightly dismissed by the trial court. 10. Moreover, the first appellate court also rightly observed that when the plaintiff had come with a specific case that Defendant No. 1 7 sa668.10 constructed a tin shed by making encroachment on plaintiff's site to the extent of 20 x 24 ft., it was incumbent upon the plaintiff to get surveyed his house, as well as house of Defendant No.1 to ascertain the exact area of encroachment. However, the plaintiff failed to do so, and he has not produced on record, the sketch map showing encroachment by defendant No.1 and thus, the plaintiff has failed to comply with provisions of Order VII Rule 3 of the Code of Civil Procedure, amended on 1.10.1983. 11. In the circumstances, apparently, there is no flaw in the reasoning adopted by the trial court, as well as the first appellate court, while dismissing the suit and appeal of the plaintiff respectively, and no interference therein is called for, in the second appeal. 8 sa668.10 12. Accordingly, no substantial question of law could be formulated and, therefore, present appeal which is sans merits, stands dismissed. 13. In view of dismissal of second appeal, civil application for stay does not survive and same also stands dismissed, accordingly. (SHRIHARI P. DAVARE, J.) pnd/sa668.10