1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 536 OF 2007 1. Raghunath S/o Khandu Dukare and others .. .. Appellants Versus 1. Tukaram Trimbak Dukare and others .. .. Respondents Mrs. Pradnya B. Deshmukh, Advocate for the Appellants. Shri M. K. Tungar, Advocate for the Respondents No. 1 and 2. CORAM : N. D. DESHPANDE, J. DATE : 17TH DECEMBER, 2009. ORAL ORDER : 01. Heard Mrs. Deshmukh, learned counsel for the appellants and Shri Tungar, learned counsel for the respondents, who is opposing second appeal for admission. The appellants are the original plaintiffs. The main contention of the respondents who are the original defendants is that both the Courts below recorded concurrent finding and moreover, the First Appellate Court which is final Court of facts in its detailed judgment and order did not accept 2 the plaintiffs' case for declaration and injunction against the defendants/respondents, regarding use of gat No. 22/1 and gat No. 23 belonging to the plaintiffs for cart track which passes through the two fields and thereby causing obstruction in to the possession of plaintiff over the suit land gat No. 22/1 to the extent of 02 Acre 08 Guntha and gat No. 23 belonging to the plaintiffs. 02. The dispute is not of ownership or of the possession of gat No. 22/1 to the extent of 02 Acres 08 Guntha and gat No. 23 of plaintiff as alleged. The defendants did not claim any possession or title to these two fields, despite finding recorded for and against the plaintiff. It was never a matter of dispute for trial before both the Courts below. It seems that parties are quarrelsome and dispute started when there was an application by the defendant for giving them a road/cart track through Government land for going to their field gat No. 27, 74 respectively. These two fields are adjoining to the fields gat No. 22/1 and 23 belonging to the plaintiffs. 03. It is admitted that some land of the gat No. 22/1 and 23 was acquired by the Government for percolation tank, even before it was purchased by the plaintiff. So in between the land of defendant and the land of plaintiff, there is acquired land for percolation tank. So, there is no question of destruction or destroying the bandh of the field of plaintiff and field of defendant. It is also not the case of the plaintiffs that defendants have encroached their land and trying to encroach their land for disturbing their peaceful possession. All the defendants are asking for cart road in respect of land which was acquired for percolation tank for going ahead to their field. It seems 3 that there are three other roads available for the defendants for going to their field as stated by the plaintiffs i. e. a separate issue. It has no concern how many roads are available unless road asked for is passing through the land of plaintiff, plaintiff did not plead such fact in the plaint. 04. There is no map or drawing placed on record to show that defendants are passing through the land of the plaintiffs. As such, there is no cause of action for the plaintiffs against the defendants. The dispute appears to be a dispute which is common in the villages between the adjoining land holders. All these aspects have been thoroughly gone through the Courts below after appreciating the evidence. It has been rightly submitted by Shri Tungar learned counsel for the respondents that there is no substantial question involved in the second appeal. The appeal is simply filed because the plaintiffs have lost their case in the first appeal and some irrelevant findings have been recorded on the issue of title and ownership which were unnecessarily framed. 05. Ignoring the findings recorded against the plaintiffs, whether call for interference or not. There was no dispute about the ownership and title of plaintiffs about their respective holding. As such, findings would not be considered as adverse against the plaintiffs. The dispute is narrow to the extent of use of cart tract by the defendants granted to them by the Tahsildar after due inquiry and panchanama prepared on the spot on 26.08.1988. The dispute started when plaintiffs have seen the defendants using the cart tract as per the order of the Tahsildar. In that view of the matter no case 4 is made out. The second appeal stands dismissed summarily at the stage of admission. [ N. D. DESHPANDE, J.] bsb/Dec. 09 Genealogy 5 Mahadu (Died) | --------------------------------------------------------------------------------------------- | | | | | Gomaji Jaiwanta Daji Bajirao Maruti (Died) (Died) (Died) (Died) (Died) | | | | | Gangu | Ganpati | | (Died) | | | -------------------------------------------- | | | | | | Shripati Nathu Rangnath Vithoba | (Died) (Died) | | | | | ------------------------- | | | | | | Sarjerao Bhimraj | | Pltff. No. 1 | | | | | ------------------------------------------- | | | | | Namdev Bhanudas Ashruba | Pltff. No. 2 | | | | | ------------------------------------------------------------------------------------------ | | | | Bajirao Ramkisan Mohan Jagannath Deft No. 1 Deft No. 2 Deft No. 3 | | | | | | | | | Murlidhar Kerba Devidas Parmeshwar Deft No. 5 Deft No. 6 Deft No. 7 Deft No. 4