1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.315 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM: P.R.BORKAR, J. Date : June 28, 2010 1. Heard Shri M.K.Deshpande, Advocate for the appellant and Shri D.P.Palodkar, Advocate for Respondent. 2. Present appellant is original plaintiff in R.C.S. No.189 of 2008 seeking declaration and perpetual injunction which was dismissed by the learned Civil Judge, Senior Division, Aurangabad on 29.4.2009; which judgment and decree was further confirmed by the learned District Judge-I, Aurangabad in R.C.S. No.116 of 2009 decided on 5.5.2010. 3. Learned Advocates together have taken me through judgments of both the courts below and the concerned law. 2 4. Present appellant had filed above suit for declaration and injunction in respect of portion of 30 ft. x 45 ft. by claiming to be owner thereof. Notice was issued by Respondent Gram Panchayat to the appellant stating that he had encroached upon the said portion of land which belongs to the Respondent. 5. Both, trial court and the first appellate court, came to the conclusion that the appellant-plaintiff failed to prove his title, so also lawful possession. It is held that the plaintiff-appellant had encroached upon the government land and as such he was not entitled to the protection of his possession. 6. In its judgment, the first appellate court considered all aspects of the matter. It is observed that no document was produced by plaintiff supporting his case and that it is not proved by plaintiff how he derived title to the suit property. Plaintiff simply stated that he had been in possession of property for last more than 40 years and, therefore, he claimed right over property as possessor in title. Plaintiff also made suggestion to defendant's witness that he is tenant in respect of the suit 3 property which was not the case made out in pleadings or oral evidence. It was also suggested to the witness of the defendant- respondent that the witness and Sarpanch had agreed to regularize encroachment made by plaintiff over disputed property and, therefore, his encroachment was not removed. No case of adverse possession by title was made out. So, the suit was rightly dismissed for declaration of title. 7. So far as injunction is concerned, it was sought because of issuance of notice by respondent-defendant to the appellant- plaintiff. There is nothing to show that the plaintiff was attempted to be ousted from encroached premises by not following due process of law. 8. It is not disputed that on 25.8.2008 Divisional Commissioner, Aurangabad had issued a order directing Zilla Parishad authorities to remove encroachments in Gram Panchayat areas. In pursuance of the said direction, notices were issued to several encroachers, including present appellant. 9. If we consider amended Section 53(2) (a) of the Bombay Village Panchayats Act, 1958, it lays down that it shall be the duty 4 of the panchayat to remove such obstruction or encroachment immediately after it is noticed or brought to its notice by following the procedure mentioned in said section. 10. In the facts and circumstances, this is not a case requiring interference as no substantial question of law arises for consideration. 11. In the result, this second appeal fails and is, accordingly, dismissed. 12. At this stage, Advocate Shri M.K.Deshpande prays that appellant be granted time to vacate the suit premises since movable articles belonging to the appellant are lying in the suit premises. Time of ten days from today is granted to remove the belongings from the encroached portion on plaintiff-appellant furnishing an undertaking in the trial court to remove encroachment within the time given. Such undertaking to be given within three days from today. Second appeal disposed of. pnd/sa315.10 (P.R.BORKAR, J.) 5