1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 234 OF 1995 Satyanarayan s/o Sitaram Dandnaik Appellant Versus Maruti s/o Digambar Patil Respondents Shri S.V. Gangapurwala, advocate for the appellant. Shri S.Y. Mahajan, advocate holding for Shri M.Y. Mahajan, advocate for the respondent. CORAM: R.M.BORDE, J. DATE : 17th August, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment and decree passed by the 2nd Additional District Judge, Osmanabad on 25-11-1994 in Regular Civil Appeal no. 140/1985 whereby the first appellate court proceeded to reverse the judgment and decree passed by the trial court in Regular Civil Suit no. 102/1979. 2 Plaintiff instituted a suit claiming mandatory direction in respect of removal of encroachment alleged to have been committed by defendant over an area to the extent of 20 ft X 60 ft as well as for 2 mandatory injunction. According to plaintiff, he has alienated suit plot admeasuring 60 ft X 150 ft in favour of defendant by executing sale-deed on 25-6-1971. The work in respect of construction of the road situate on the northern side of survey no. 123 was taken up and the cart tract which was in existence was converted into road. It is stated that for the work of widening of the road an area to the extent of 40 ft. in width was taken in possession by the Zilla Parishad authority. It is thus contention of the plaintiff that an area to the extent of 20 ft X 60 ft is utilised for road out of the plot belonging to the defendant. Defendant however, finding that the area alienated in his favour is reduced, has encroached upon adjoining property belonging to the plaintiff from southern side. Plaintiff as such prays for removal of encroachment and for recovery of possession of the encroached area. 3 Defendant appeared and controverted the adverse contentions raised by plaintiff. According to him, he has not committed encroachment over an area belonging to the plaintiff. 4 Trial court after receiving the evidence lead by the parties came to the conclusion that the plaintiff has established his case and as such 3 decreed the suit presented by plaintiff by judgment and decree dt.12-11-1984. Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no. 140/1985 at the instance of the defendant. First appellate court after considering the evidence placed on record and after hearing the parties was pleased to allow the appeal. 5 I have perused the judgment recorded by both the courts below. It has been observed by the first appellate court that so far as sale-deed exh. 41 executed in favour of the defendant by the plaintiff is concerned, northern boundary is shown as road and not cart track as contended by plaintiff. It is also observed by the first appellate court that the work of construction of road had started in the year 1970 and the work order was issued by Zilla Parishad on 22-12-1970. Learned Judge of the appellate court thus observed that before execution of the sale-deed in favour of the defendant, work in respect of construction of road was already allotted to the contractor and the same had progressed at an advanced stage. It has also not been established by the plaintiff that defendant has in fact encroached upon an area to the extent of 20 ft X 60 ft from southern side over the property belonging to the plaintiff. Appreciation of 4 evidence by the first appellate court cannot be said to be unreasonable or perverse. Appeal does not give rise to any substantial question of law. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa234.95.odt