1 sa953.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD SECOND APPEAL NO. 953 OF 2009 Asaram s/o Khanduji Gaikwad ...Appellant VERSUS The Municipal Council, Gangapur, through its Chief Officer, Municipal Council office, Gangapur, District AurAngabad ...Respondent ..... Shri M.D.Narwadkar, advocate for the appellant Respondent sole served – absent. ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 6 th January, 2010 PER COURT : 1 Heard Shri M.D. Narwadkar, advocate for the appellant. None for the respondent in spite of service of notice. 2 The appellant (original plaintiff) purchased 2 gunthas of land out of Gat No. 272 at Gangapur from its owner, namely Sheknath Khajekar. The total land belonging to the said owner was 2 sa953.09 admeasuring about 13 acres 27 gunthas, out of which 8 acres and 20 gunthas was alrerady acquired by the Municipal Council, Gangapur and compensation was paid to the owner namely Sheknath Khajekar. The plaintiff/appellant herein intended to construct the house on his plot, and therefore, he applied for permission for the construction thereon to the Municipal Council, Gangapur. However, it came to be rejected by letter dated 5.7.2003 by the respondent herein contending that the plot of land belonged to the Municipal Council, Gangapur i.e. respondent herein. 3 Hence, the plaintiff filed R.C.S. No. 268 of 2003 for declaration that refusal of the permission by the respondent be declared as illegal and void and also for mandatory injunction by way of issuance of directions to the respondent to grant permission for construction to the appellant herein. 4 The defendant/Municipal Council appeared in the said suit and filed the written statement and resisted the suit claim. It contended that there was provision of appeal to the Commissioner in case of refusal of permission for construction, and therefore, it was contended that the plaintiff /appellant has chosen wrong forum, and hence, the said suit was not maintainable, since efficacious remedy 3 sa953.09 of appeal to the Commissioner was available to the plaintiff/appellant. It was further contended that entire Survey No. 272 was acquired and it was not owned by Sheknath Khajekar. 5 Considering the evidence adduced by the plaintiff and the defendant and after considering the rival submissions, the said suit came to be dismissed by the learned Civil Judge, Junior Division, Gangapur on 24.7.2006. 6 Being aggrieved and dissatisfied by the said judgment and order of dismissal of the suit, the plaintiff/appellant herein preferred Regular Civil Appeal No. 251 of 2006 before the District Court, Aurangabad. However, same also resulted into dismissal by the judgment and order dated 5.8.2009 rendered by the learned Ad hoc District Judge-I, Aurangabad. 7 Feeling aggrieved and dissatisfied by the said dismissal of the appeal by the lower Appellate Court, the plaintiff/appellant has preferred the present Second Appeal. 8 On perusal of the record, it is revealed that the plaintiff/appellant herein was unable to prove and establish the exact 4 sa953.09 location of the plot allegedly purchased by him, and therefore, unless and until location of he plot is determined and identification thereof is established, it was not just possible to consider the prayers of the plaintiff/appellant. Moreover, alternate efficacious remedy of preferring appeal before the Commissioner after refusal of permission for the construction was available to the plaintiff/appellant, but so was not availed by him, which is also material hindrance in the way of the plaintiff/appellant herein. 9 Apart from that, learned counsel for the appellant was unable to point out any substantial question of law involved in the present Second Appeal, and therefore, present appeal deserves to be rejected in limine. 10 In the result, present Second Appeal No. 953 of 2009 stands dismissed. (SHRIHARI P. DAVARE, J.) dbm/sa953.09