1 81 sa.579.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION SECOND APPEAL NO. 579 OF 2011 Ananda Kundlik Rajigare and others. ... Appellants Versus Dattu Krishna Rajigare (Deceased) 1. Smt. Shalabai Dattatraya Rajigare and others. ... Respondents ­­­­­ Mr. Abhijeet A. Desai for the Appellants. ­­­­­ CORAM : A.S.OKA, J. DATE : 21 st November, 2011. P.C. 1 Heard the learned counsel appearing for the Appellants. 2 The Appellants are the original Defendants. In the suit filed by the Respondents, the decree for removal of encroachment has been passed against the Appellants. The Respondents are the owners of the land bearing Gat No.858, admeasuring 2 Hectare and 57 Ares. The Appellants are the owners of the land bearing Gat No. 856, which is on the eastern side of the land bearing Gat No.858. 2 81 sa.579.11 3 The submission of the learned counsel appearing for the Appellants is that at the time of filing of the suit, there was no compliance made by the Respondents with Rule 3 of Order VII of the Code of Civil Procedure, 1908. He submitted that the Appellate Court has erroneously observed that the said plea was being raised for the first time in the appeal. He submitted that the judgment of the trial Court shows that the Appellants have specifically disputed the description of the suit property. He submitted that the suit was barred as the relief of encroachment was not claimed in the earlier suit filed by the Respondents being Suit No.9 of 1973. He, therefore, submitted that as the plea of non­compliance with Rule 3 or Order VII of the said Code has not been considered on merits it gives rise to a substantial question of law. He submitted that the trial Court committed an error by permitting the Respondent – Plaintiffs to carry out amendment to the plaint for incorporating the description of the suit property after a period of three years from the date of the institution of the suit. He submitted that the said order was illegal. 3 81 sa.579.11 4 I have given careful consideration to the submissions. The decree passed by the Courts below is based on the measurement of the properties held by the Appellants and Respondents carried out by the Surveyor who has been examined as a witness by the Respondents. In the map drawn by the Surveyor on carrying out the survey, he has shown encroachment on the property of the Respondents. The Appellate Court has noted that the trial Court had called upon the Appellants to submit a reply to the survey report, but no such reply was filed. The Appellate Court has recorded a finding that the Surveyor's report shows that the properties of both the Appellants and the Respondents were measured by the Surveyor. The finding of fact is that there are no irregularities in the measurement carried out by the Surveyor. The survey map shows the encroachment on the property of the Respondents. The decree has been passed for removal of the encroachment as shown on the survey map at Exhibit – 38. 4 81 sa.579.11 5 In paragraph No.13 of the judgment of the Appellate Court, it is recorded that after the institution of the suit, both the properties were surveyed and the description of the property in dispute was incorporated in the plaint as per the measurement given by the Surveyor in the survey map. Thus, during the pendency of the suit by carrying out amendment, correct description of the encroached portion was incorporated in the plaint. Apart from the fact that the suit being filed in the year 1999 will not be governed by the amendment to the Code of Civil Procedure, 1908 which came into force with effect from 1 st July, 2002, there is no plea of adverse possession pressed into service by the Appellants and therefore, even assuming that the amendment carried out to the description of the suit property may not relate back to the date of the institution of the suit, the said amendment was not barred by limitation. Thus, a substantial compliance was made with the requirement of Rule 3 of Order VII of the said Code during the pendency of the suit by carrying out amendment. The bar based on earlier suit cannot be invoked unless it 5 81 sa.579.11 was proved that the encroachment was made before the institution of the earlier suit. 6 Hence, I find that there is no illegality committed by the Courts below. No substantial question of law arises. The Second Appeal is dismissed with no order as to costs. 7 Civil Application No.569 of 2011 does not survive and the same is disposed of. [ A.S.OKA, J ]