1 SA389/2008. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.389 OF 2008. 1. Shaikh Noor S/o Shaikh Chand, Since Deceased L.R's 1.Smt.Rabia Bee W/o Sk. Noor, Age: 65 years, Occ: Household, R/o: Kaziwada, Bhadkalgate, Tq.& Dist.Aurangabad. 2.Sk.Yunus Sk.Noor, Age: 30 years, Occ: Auto Driver, R/o.Kaziwada, Bhadkalgate, Tq.& Dist.Aurangabad. 3.Raziabegum W/o Shaikh Mahemood, Age: 30 years, Occ: Household, R/o: Kaziwada, Bhadkalgate, Tq.& Dist.Aurangabad. 4. Saberabee Sk.D/o Shaikh Noor, Age: 46 years, Occ: Household, R/o: Kaziwada, Tq. & Dist.Aurangabad. 5.Taherabee D/o Shaikh Noor, Age: 23 years, Occ: Household, R/o: Paithan, Tq.& Dist.Aurangabad. 6.Shakerabee D/o Shaikh Noor, Age: 40 years, Occ: Household, R/o: Chikalthana, Tq.& Dist.Aurangabad. 2 SA389/2008. 7. Zakerabee D/o Shaikh Noor, Age: 43 years, Occ: Household, R/o: Bidkin, Tq.& Dist.Aurangabad. 8. Rashedabee D/o Shaikh Noor, Age: 38 years, Occ: Household, R/o.Bidkin, Tq.& Dist.Aurangabad. 9.Nazerabee D/o Shaikh Noor, Age 34 years, Occ: Household, R/o. Kiradhpura, Tq. & Dist.Aurangabad. 10. Raziabegum Sk.Mahmood (deleted as wrongly shown. She is already shown as appellant No.3). 2) Sk.Karim S/o Sk.Chand Since deceased L.R's. 1.Khaja Khatoon W/o Sk.Karim Sk.Chand, Age: 66 years, Occ: Household, R/o: Kaziwada, Tq.& Dist.Aurangabad. 2.Sk.Md.Shafee Sk.Karim, Age: 45 years, Occ: Servcie, R/o: Kaziwada, Tq. & Dist.Aurangabad. 3.Sk.Md.Tayyeb Sk.Karim, Age: 43 years, Occ: Service, R/o.Kaziwada, Tq.& Dist.Aurangabad. 3 SA389/2008. 4. Sk.Md.Rafee Sk.Karim, Age: 35 years, Occ: Auto Driver, R/o: Kaziwada, Tq. & Dist.Auragabad. 5.Azmat Begum Sk.Karim, Age: 45 years, Occ: Household, R/o: Kannad, Tq. & Dist.Aurangabad. 6. Farhat Begum Sk.Karim, Age: 40 years, Occ: Household, R/o: Chikalthana, Tq.& Dist.Aurangabad. 3) Sk.Raheem S/o Sk.Chand, Since Deceased L.Rs. 1. Fatimabee W/o Sk.Rahim Sk.Chand, Age: 48 years, Occ: Household. 2. Sk.Naeem Sk.Rahim, Age: 30 years, Occ: Labnour. 3. Sk.Nadeem Sk.Rahim, Age: 20 years, Occ: Labour, All R/o: Kaziwada, Tq. & Dist.Aurangabad. 4. Shaheen Begum D/o Sk.Rahim, Age: 28 years, Occ: Household, R/o: Kaziwada, Tq. & Dist.Aurangabad. 5. Nasreen Begum Sk.Rahim, Age: 26 years, Occ: Household, R/o: Kiradpura, Tq. & Dist.Aurangabad. 6. Tahseen Begum Sk.Rahim, Age: 24 years, Occ: Household, R/o: Kaziwada, Tq. & Dist.Aurangabad. 4 SA389/2008. 4) Sk.Ibrahim S/o Sk.Chand, Age: 60 years, Occ: Service, 5) Sk.Ahmed S/o Sk.Chand, Age: 58 years, Occ: Government Service. 6) Sk.Omar S/o Sk.Chand, Age: 53 years, Occ: Government Service, All R/o Kaziwada, Bhadkalgate, Dist.Aurangabad. ...Appellants. Versus 1. The State of Maharashtra (Through Collector, Aurangabad.) 2. The Dean, Medical College Hosital, Aurangabad. ...Respondents. ... Mr.B.R.Warma, Advocate for the appellants. Mr.J.S.Gavane, Advocate for the respondents. ... CORAM: A.V.NIRGUDE,J. Date : 27th July, 2009. COURT'S ORDER: 1. The appellants are the original plaintiffs and legal heirs and representatives of few of the original plaintiffs, who died during the pendency of the litigation. They claim that land CTS No.2520 5 SA389/2008. belonged to them. They further claimed that Respondent No.2-Government Gollege Authorities made encroachment on their land mentioned above by constructing a wall. They sought removal of the wall, possession and permanent injunction. The trial court decreed their suit. The appellate Court, however, dismissed the suit. 2. At the first appeal stage both the parties agreed for joint measurements of the disputed property. The measurements were taken and the appellate Court came to a conclusion that the suit land CTS No.2520 claimed by the appellants was very much in possession of the appellants. The alleged encroachment of wall was on the eastern boundary of CTS No.2520. In view of this factual finding, the appeal was allowed and the suit came to be dismissed. This Second Appeal is filed against the said judgment. 3. With the help of the learned counsel appearing for the parties, I perused the record and saw Exh.83, which is the city survey Sanad which also depicts the CTS No.2520 with it's measurement and boundaries. It also mentions the area of the property. The appellants contended that this plot was encroached by the respondent No.2 by constructing a wall. They also said that due to construction of the wall their plot 6 SA389/2008. is divided in to two portions. But, the map prepared by the Court Commissioner at appellate stage clearly show that the property CTS No.2520 is very much in possession and control of the appellants. As said above, it also shows that on the eastern boundary of property CTS No.2520 their exists an old compound wall constructed by the defendant No.2, the Govt. Medical College. The Commissioner's report further shows that to the east of the compound wall and the property CTS No.2520, there are few structures (huts) on the adjoining CTS No.240 which admittedly belonged to the appellants here. Admittedly, CTS No.240/1 does not belong to the appellants. Does this mean the appellants made encroachment on CTS No.240? This of course is not a question before me & I do not offer comment on it. It is enough if I say that the Court Commissioner's observations and map proved that the appellants and their predecessor were/are under wrong impression that they are not only owners of CTS No. 2520 but also of the land (CTS No.240) which is laying to the east of it. Because of this belief, they alleged that due to the compound wall their "property" is divided into two portions. It is clear that the appellants and their predecessor have failed to prove their case that their property CTS No.2520 has been encroached upon, so the suit should fail. 5. The other objection, Mr.Warma, learned Advocate 7 SA389/2008. appearing for the appellants, raised was that while the matter was before the First Appellate Court, one appellant died. His death was reported to Court and the respondents, yet, he said, the respondents did not implead the legal heirs of the deceased appellant on record. He said that the legal heirs of deceased appellants thus could not remain present before the First Appellate Court and in their absence the impugned judgment came to be passed. He also said that with the result, the impugned judgment was delivered against at least three dead persons. I am afraid, this objection is merely a technical one. All the other similarly placed appellants were before the First Appellate Court, in their presence, the above mentioned measurements took place and in the present appeal, all the legal heirs of three deceased appellants are before the Court. They are unable to raise substantial question of law and so the appeal should fail. The appeal stands dismissed. 6. In view of this, Civil Application No.7961/2008 does not survive. It stands dismissed. (A.V.NIRGUDE,J.) lkp