(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 316 OF 2007 Sow. Vijaya w/o. Suresh Kayasth & .. Appellants others. (Original plaintiffs) versus Kashinath Gangaram Bargal & .. Respondents another. (No.1 - Original defendant & No.2 - Original plaintiff no.4 ) ....................... Mr. Vivek Bhavthankar, Advocate, for the appellants. Respondent no.1 served (Absent). Appeal abated as against respondent no.2 vide court's order dated 26-6-2009. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 3RD MAY 2010 (2) COURT'S ORDER : 1. Heard learned Counsel for the appellants (original plaintiffs). 2. The plaintiffs claim that along with some others, they have formed a Cooperative Housing Society and desired to erect houses, by purchasing 6 Acres 8 Gunthas land from one Namdeo Markad, forming part of Survey No. 133, vide registered sale deed dated 13th February 1984. The name of the said Society is mutated in the revenue record, however, it was not registered. The plaintiffs assert that they are in possession of plots bearing nos. 55, 47, 7, 46, 33 and 49. The defendant, who is office bearer of Shri Bhadra Maroti Sansthan, Khultabad, has no concern with the suit plots. The property of the said Sansthan is adjacent to the property of the proposed Society from southern side. The defendant, along with the other office bearer, has tried to encroach over suit plots of the Society, the defendant has started construction of a compound wall and has closed the road of the plaintiffs' Society. 3. The learned Judge, on analysis of the evidence, found that there exists an internal road for the user of the so called Society. The court of first instance held about title of the plaintiffs, however, the first appellate court reversed the same (3) and, rightly so, as it was a case of removal of so called encroachment on the property of the plaintiffs, however, possession of the appellants over the respective plots was not a question for consideration before the learned trial Judge. It was only in respect of a particular portion which the plaintiffs' claim is allegedly tried to be obstructed and encroached upon. The issuance of notice by the Municipal Council by virtue of Sections 52, 53 and 54 of the Maharashtra Regional Town Planning Act by itself will not culminate that the internal road of the proposed Society was closed by committing encroachment on the property of the plaintiffs. 4. The courts have lost sight of the fact that the owner of the property of the defendant, being a Trust, is not at all properly impleaded. It was a suit filed against one of the office bearer of the Trust which itself was not maintainable. The Society, if it was registered, should have sued the defendant. That mistake is also not cured at any point of time. The contention, that there is purported encroachment, will only be available, by actual measurement caused by Cadastral Surveyor. No such exercise was carried out by the plaintiffs and particularly when there is no approved layout of the Society from the competent authority. In the situation, I do not find any error on the part of both the courts in dismissing the suit and the Regular Civil Appeal. (4) 5. The Second Appeal sans merit and it is accordingly dismissed. However, the plaintiffs will be at liberty to avail of the remedies, as are permissible under law. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa316