1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 378 OF 1991 1. Namdeo s/o. Nathu Shete, 2. Bhika s/o. Onkar Shete, Both R/o. Amalner, Dist. Jalgaon. ....Appellant. Versus Madhav s/o. Keshav Shimpi (deceased) legal heirs. 1. Shriram s/o. Madhav Shimpi, 2. Ganesh s/o. Shriram Shimpi, 3. Tarabai Keshavrao Deshmukh, All R/o. Keshavrao Deshmukh Bungalow, Amalner, Dist. Jalgaon. 4. Chief Officer, Muncipal Council, Amalner, Dist. Jalgaon. ....Respondents. Shri. M.N. Navander h/f. Shri. K.G. Navander, Advocate for the appellants. Shri. Deepak Rajput h/f. Shri. B.R. Warma, Advocate for the respondents 1 and 2. CORAM : R.K. DESHPANDE, JJ. DATE : 7th September, 2009 2 ORAL JUDGMENT : 1. This appeal challenges the judgment and order dated 1.1.1991, passed in Civil Appeal No. 313/1989 by the learned Additional District Judge, Amalner, dismissing the appeal and confirming the judgment and decree passed by the learned Civil Judge, Junior Division, Amalner, dismissing the Regular Civil Suit No. 200/1980. 2. The appellants, who are the original plaintiffs had filed Regular Civil Suit No. 200/2008 for declaration and mandatory injunction. The declaration sought for is that the defendants have carried out unauthorized construction on 30 feet wide suit road and hence, the mandatory injunction was claimed for removal of said unauthorized construction. The Trial Court framed first two issues as under :- "(i) Does the plaintiff prove that there is 30 fts. wide suit road in town planing scheme as finalized ? (ii) Does they prove that the defendants are constructing and have constructed on the road ?" 3. Both the issues are answered in negative. The Trial Court has recorded a finding that the final scheme at Exh. 69 does not show any road to the west of plot No. 21 as alleged by the plaintiffs. In appeal the Appellate Court has framed following first two points for determination:- "(i) Whether it has been proved by plaintiffs appellants that there is road of 30 ft. wide in existence ? (ii) Whether it has been proved by plaintiffs 3 appellants that defendants respondents have illegally and unauthorizedly constructed on the site of the said road in the suit ?" The aforesaid points for determination are answered in the negative. The Appellate Court has held that the plaintiffs have failed to prove the existence of road on the western side of the sub-plot No. 21. 4. Mr. M.N. Navandar, the learned counsel appearing for the appellant and holding for Shri. K.G. Navandar has stated that it has been necessary for the Courts below to consider the copy of the map at Exh. 66 and the copies of the sale deeds at Exhs. 51, 52 and 62, which clearly indicated the existence of road. The learned counsel further relied upon the portion of deposition of D.W. 3 Khanore, the Town Planning Officer. The learned counsel further urged that the Trial Court ought to have verified the factual position by appointing Commissioner on its own. This Court framed following three substantial questions of law. "(i) The Courts below have failed to consider the map at Exh. 66 which proves the fact that there is 30 fts. wide road as per the map approved by the Town Planning authorities. The Courts below acted illegally on the said map. (ii) The Courts below have also acted illegally by not considering title deed Exhs. 51, 52 and 62 which prove the existence of 30 fts. wide road. (iii) The Courts below have failed to interpret the sale deed at Exhs. 51,52, 62 properly alongwith the Town Planning Map reproduced at Exh. 66." 4 5. With the assistence of the learned counsels for the parties, I have gone through the findings recorded by the Courts below and Shri. Navander, the learned counsel for the appellant, has also read over the evidence of of P.W. 2 Khanore, the Town Planning Officer. So far as the map at Exh. 66 is concerned, it is the certified copy which was filed in Regular Civil Suit No. 38/68. It was sought to be relied upon to urge that their exists road to the west of plot No. 18 and 21. The Trial Court rejected the said document on the ground that it is not clear whether this lay out plan was at any time accepted by the Municipal Council as it does not bear any stamp or signature of any any authority. The Trial Court, therefore, refused to rely upon the said document. The Appellate Court also considered this document and observed that the Trial Court has rightly not accepted the said document. The Appellate Court also considered the said document in the light of the evidence of Shri. Khanore, the Town Planning Officer, who testified that there is a lay out road, that might be a town planning road. The Appellate Court has found his evidence in that respect to be unreliable on the ground that in the cross examination Shri. Khanore has given a clear admission that to the west of plot No. 18 and 21 there is no town planning road. The Appellate Court has further recorded a finding that the burden lies upon the plaintiffs to prove the existence of the said road, which they have failed to prove. In view of these findings recorded by the Courts below, which are concurrent in nature, it cannot be said that the map at Exh. 66 has not been considered by the Trial Court or the Appellate Court in the light 5 of the evidence of Shri. Khanore. The findings of facts does not give rise to any question of law, much less the substantial question of law. It is only a finding on fact and the view which can be characterized as a possible view. Hence, it is not possible to accept the contention of the learned counsel for the appellant. 6. The next contention of the learned counsel is based upon the sale deeds at Exhs. 51, 52 and 62, which according to the appellant, shows the existence of 30 fts. wide road. The sale deeds are also considered by the Trial Court in its judgment and the same are rejected on the ground that the parties may write anything in their document. The Appellate Court has also considered these sale deeds and has confirmed the findings of the Trial Court. The Appellate Court has held that unless the existence of road under the Town Planning Scheme is proved, the sale deeds are of no help. In view of this, it cannot be said that the Courts below have failed to consider the sale deeds. It is a matter purely of appreciation of evidence dealt with by the Courts below taking a possible view of the matter. Hence, in my view, no substantial question of law arises out of the said findings. 7. So far as the last contention of the learned counsel regarding appointment of Commissioner to find out the location of the sight and construction is concerned, it is now well settled that it is for the plaintiff to lead evidence and establish his case. It is not the function of the Court 6 to appoint the Commissioner to collect the evidence for the plaintiff. The plaintiff has to stand out on his own legs. Apart from this, this contention has not been raised in any of the Courts below. It cannot be, therefore, permitted to raised this issue for the first time in the second appeal. The contentions of the learned counsel is, therefore, rejected. 8. In view of this, I do not find any infirmity in the findings recorded by the Courts below. The instant appeal fails. The same is, therefore, dismissed without there being any order as to costs. [ R.K. DESHPANDE, J. ] ssc/sa378.91