1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 141 of 2008 (M/s Jagadamba Krishi Kendra Dhamangaon Gandhi Vs. Kadirsha Hasusha & anr.) Appeal District : Application No. of 200 Writ petition - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : Smt. Vasanti A. Naik, J. DATE : 13 th June, 2008 Heard Shri Narwade for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff against the defendant seeking mandatory injunction directing the defendant to remove the platform (Otta) which was described in the plaint map. According to the plaintiff, he was a tenant of a public trust and there was a Banyan tree at a distance of 3 feet from the door of the shop of the plaintiff towards the main door. According to the plaintiff, he was using the said way for more than 20 years, without interruption but, the defendant had, without any authority, 2 constructed a cement Otta of 10'X10' area by the side of the Banyan tree. It was the case of the plaintiffs that the defendants had started a Pan Stall in the encroached portion. Since the defendants failed to remove the obstructions, a suit was filed by the plaintiff. The defendants contested the suit filed by the plaintiff by denying that the construction of the Otta obstructed the plaintiff in any manner. According to the defendants, they were dealing in Pan shop for more than 40 years. According to the defendants, the land on which the Otta is located, was a Nazul land and, therefore, Gram Panchayat and Government were the necessary parties to the suit. The defendants, therefore, sought for dismissal of the suit. The trial Court, on an appreciation of the evidence on record, held that the Otta (Platform) which was constructed by the defendants, did not cause any obstruction to the way of the plaintiff, the suit was bad for non-joinder of necessary parties & the plaintiff was not entitled for grant of mandatory 3 injunction as prayed for. The defendants succeeded in proving that the disputed Otta was constructed about 40 years ago. The findings recorded by the trial Court were affirmed by the first appellate Court in an appeal filed by the plaintiff. I have perused both the judgments with the assistance of the learned counsel for the appellant. The findings recorded by both the Courts are pure findings of facts and do not give any rise to any substantial question of law. Second appeal is, therefore, dismissed with no order as to costs. JUDGE RMP