1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Second Appeal No. 604/2005 Naresh s/o Deorao Jadhao & another Vs. Ganesh s/o Asarampant Khandebharad 3 others. ----------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's order Judge's orders and Registrar's order ------------------------------------------------------------------------------------------------------------ Coram : A.P. Lavande, J. Order reserved on 17.2.2009. Order pronounced on:24.2.2009. Heard Mr. R.W. Joshi, learned counsel for the appellants and Mr. A.S. Jaiswal, learned counsel for respondent no.1. By this appeal, the appellants take exception to the judgment and decree dated 22nd August, 2005 passed by 2nd Adhoc Additional District Judge, Buldhana, in Regular Civil Appeal No. 10/2004 allowing the appeal filed by respondent no.1 against the judgment and decree dated 10.12.2003 passed by Civil Judge, Junior Division, Deulgaon Raja, District Buldana in Regular Civil suit No.58/2000. The appellants are defendants 1 and 5 in the above suit filed for mandatory injunction and permanent injunction. The suit was filed by the plaintiff alleging illegal construction in between the property of the plaintiff and the 2 road on the ground that not only the construction was illegal but it was causing inconvenience to the plaintiff. The trial Court held that the construction was illegal but recorded the findings against the plaintiff regarding his title to the plot on which the construction was undertaken and also regarding inconvenience. In appeal preferred by respondent no.5 - the plaintiff, the lower Appellate Court held that since the construction was illegal and the plaintiff was entitled to the decree directed removal of encroachment. Aggrieved, the defendants 1 and 5 are before this Court in second appeal. In support of the appeal, Mr. Joshi, learned counsel, has made the following submissions:- (i) The suit filed by the plaintiff- respondent no.1 was not maintainable, in view of the provisions of Bombay Highways Act, 1955 and, particularly, Sections 68, 54.21 and 64 of the Act. (ii) The alleged encroachment could be removed only by the authorities under Bombay Highways Act, 1955. (iii) The suit filed by the plaintiff was barred by limitation inasmuch as in the plaint itself the plaintiff had averred that the initial encroachment was about 5 to 6 years' back. Therefore, the suit was patently barred by limitation. 3 In support of his submissions, the learned counsel relied upon the following authorities : (1) Smt. Fatima Joao v. Village Panchayat of Merces and another : AIR 2000 BOMBAY 444, (2) Nagorao Narayan Diwane since deceased through L.Rs. Smt. Laxmibai wd/o Nagorao Diwane and others vs. Narayan Awadutrao Dighe since deceased through L.Rs. Smt. Sulochana Narayan Dighe and others : 2000 (2) Mh.L.J.273. Per contra, Mr. Jaiswal, learned counsel for respondent no.1- plaintiff submitted that no issue regarding the applicability of the provisions of the Bombay Highways Act, 1955 was framed in the trial Court and merely because a a ground was taken in the appeal, the same would not be of any help to the appellants. He further submitted that the issue of limitation having not been taken in both the Courts below, the same cannot be raised by the appellants in the present second appeal. Learned counsel relied upon the judgments of the Apex Court in Bakhtiyar Hussain (Dead) through L.Rs. Vs. Hafiz Khan and others : (2007) 12 SCC 420 and Ramesh Chand Ardawatiya vs. Anil Panjwani : (2003) SCC 350. Learned counsel further submitted that since the construction was patently illegal and was on government land, the suit filed by the plaintiff, who was the 4 adjoining owner was maintainable. In support of this submission, learned counsel relied upon the judgments of this Court in Smt. Fatima Joao v. Village Panchayat of Merces and another : AIR 2000 Bombay 444 and Jiwanlal s/o Pokardas Motwani vs. State of Maharashtra and others : 2004(1) Mh.L.J. 265. Having heard learned counsel for the appellants and the respondent no.1 and having perused the record and the judgments relied upon, I am of the considered opinion that no case has been made out for interference in the second appeal. Insofar as the question of applicability of the Bombay Highways Act, 1955 is concerned, admittedly, no issue was framed in this regard by the trial Court. No doubt, in appeal, the plaintiff took a ground that the provisions of Bombay Highways Act, 1955 are applicable. In my opinion, in the absence of any specific pleading in the plaint and an issue having been framed to that effect, the mere fact that such a ground is taken in the memo of appeal before the lower Appellate Court would not entitle the appellant to urge that the provisions of the Bombay Highways Act 1995 are applicable and, therefore, the suit is not maintainable. I, therefore, find no merit in the said submission. Insofar as the issue of limitation is concerned, no doubt, Mr. Joshi is right upon placing reliance upon the 5 judgment delivered by the learned Single of this Court in Nagorao Narayan Diwani since deceased through L.Rs. Smt. Laxmibai wd/o Nagorao Diwane and others : 2000 (2) Mh.L.J.273 in which this Court held that the plea of limitation though not raised in the trial Court, can be raised in the second appeal. However, the same does not advance the case of the appellants. Perusal of the plaint, discloses that it is the case of the plaintiff that about 5-6 years' back the defendants erected a temporary wooden structure in the suit plot and just before filing of the suit in May 2000 the defendant started erecting permanent structure. According to the plaintiff, the cause of action had arisen in the year 2000 being an independent cause of action, the plaintiff was entitled to file the suit on the basis of the said cause of action. I, therefore, find that the contention of the appellants that the suit was barred by limitation has no merit. Both the Courts below have held that the construction undertaken by the appellants was illegal and was carried out without obtaining the permission and the construction was on government land. This being the position, the ratio laid down in Smt. Fatima Joao's case (supra) which has been relied upon by the learned counsel in Jiwanlal s/o Pokardas Motwani (supra) is squarely applicable in the present case. The construction being patently being illegal deserves to be demolished and there 6 are no equities in favour of the appellants. In view of the above, I find no merit in the present appeal. Hence, the appeal is dismissed. CAZ No.7182/2005 In view of dismissal of the appeal, nothing services in the application. Accordingly, the application is dismissed. JUDGE Ambulkar.