1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1416 OF 2004 1) Uttamrao s/o Vithal Yadav and others. - APPELLANTS (orig.pltfs.) VERSUS 1) Chandkhan s/o Shekhan Pathan and others. - RESPONDENTS (orig.Deftts.) ***** Mr.SS Choudhari,Advocate for Appellants; ----- CORAM : K.U.CHANDIWAL, J. DATE : 15th March, 2010. PER COURT : 1) Heard. 2) A decree of declaration in favour of the plaintiffs by learned Civil Judge, Junior Division, Ahmedpur, dated 21.4.2001 was questioned before the learned Additional District Judge, Udgir Camp at Ahmedpur in Regular Civil 2 Appeal No.319 of 2001. The learned Additional District Judge, on re-appreciation of the evidence and documents, negated plaintiffs’ assertion of the encroachment and dismissed Regular Civil Suit No.213 of 1994. The plaintiffs have assailed the said finding in the Second Appeal. 3) Mr.Choudhari, learned Counsel appearing for the appellants would argue, when the Appellate Court, in paragraph 12 of the judgment, accepts that Vithalrao was owner of the land Survey No.183/1 and mutation entry No.2117 at Exh.122 unfolds that it was the land belonging to Vithal and thereafter his widow – Vatsalabai w/o Vithalrao Yadav, then, according to Mr.Choudhari, there was no justification for the learned Judge to dismiss the suit holding that there was no encroachment. 4) Without reverting to the facts, the situation that is emerged on record is, the 3 plaintiffs unfortunately failed to establish what was the entire area of land Survey No.183/1 owned by Vithalrao and what was the area after its sale remained in occupation of Vatsalabai or was occupied by the plaintiffs, as purchasers of different plots. Measurement map produced by the plaintiffs was found by the Additional District Judge was about the correct picture of road which is to the eastern side of Survey No.183/1. 5) The learned Additional District Judge found, though plaintiffs established ownership to the land Survey No.183/1, however, they failed to prove that the suit plot was part and parcel of Survey No.183/1 and consequently, the suit came to be dismissed. This re-appreication of evidence by the learned first Appellate Court was in tune with the evidence of one Arun, who has stated that the safety tank and dung pit of the defendants was on the plot since eight years. The learned Judge found, since the statement was recorded on 3.7.2000, by mathematical calculations, it could be said that it was from 4 1992 defendant no.1 was in possession of the plot. The plaintiffs filed the suit for perpetual injunction in 1994 and subsequently amended it for mandatory injunction. Thus, the learned Appellate Court rightly found, from admission of plaintiffs’ witness Arun, it is clear that the defendants were in possession since 1992, the plaintiffs could not be in possession over the suit plot, under such circumstances, the plaintiffs could not have sought a decree of perpetual injunction in the manner it was accelerated upon as the plaintiffs were not in possession of the suit property. It was also found by the learned first Appellate Court that Uttamrao Vithalrao Yadav accepted the suit plot is not entered into in the name of any of the plaintiffs to the Gram Panchayat record. This aspect, as found by the learned Additional District Judge, cannot be said to be flowing on erroneous appreciation of evidence. No question of law or substantial question of law is projected. The Second Appeal is sans merit, it 5 is dismissed with CA. 6) The remedies of the plaintiffs for a suit on title/possession is not foreclosed. (K.U.CHANDIWAL) JUDGE bdv/sa1416.054