1 wp2-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.2/2010 Shalinibai Bapurao Randive V/s Municipal Council, Osmanabad & Ors. ...... Shri Vijay Sharma,Adv.for Petr. Shri V.G.Shelke,AGP for R-State Shri R.V.Naiknavare,Adv.for R.1 .... CORAM : A.A.SAYED,J. DATE : 06/12/2010. ORAL ORDER : 1] The petitioner is aggrieved by the order dated 19/9/2009 passed by the Joint Civil Judge, Senior Division, Osmanabad, whereby the application of the petitioner/orig.plaintiff for framing additional issues, came to be rejected. 2] I have perused the issues which were originally framed (page no.89 to the petition) and the additional issues which are sought to be added (page 90 of the petition). It is noticed that the petitioner was allowed to amend his plaint on 2/9/2008. The issues were framed on 31/1/2009. The plaintiff has thereafter made an application for framing additional issues on 15/6/2009. 2 wp2-10 3] The suit is filed by the petitioner/orig.defendant essentially for removal of encroachments allegedly made by defendant nos. 3 to 13 over the common lane towards the northern side to the house of the plaintiff. Respondent no. 3 has not appeared though served. The learned counsel for the petitioner states that he is willing to restrict the two additional Issues only to the proposed additional Issue No.2 which reads as follows : 2] Whether the plaintiff prove that the property bearing City Survey No.3096 has got merged with the public lane of 48 ft. X 4½ ft. by way of prescription and unobstructed and unhindered use as a public lane for ingress and egress for eastern and western side roads. 4] The learned Judge has noted in para 3 of the impugned order as follows : 3] I have gone through record and issues framed earlier. It appears that proceed (sic proposed) issue No. 2 is well covered by issues framed. 5] On going through the pleadings and issues as framed and the proposed additional issues, it does appear to me that the proposed additional Issue No.2 cannot be said to be entirely covered by other issues as framed particularly if one peruses the prayer clause C-1 of the plaint which reads as under :- C-1] That, it may kindly be declared that there is a common easement of public lane bearing City Survey No. 3096, inclusive of the public Lane of 3 wp2-10 about 48 ft. length X 4½ ft. having common dimensions admeasuring about 43.3 Sq. mts. (i.e. the length in the East- West direction is about 16.25 mts. long on northern side and about 15.05 mts. long on southern side and the width is about 3.40 mts. wide in the North-South direction . 6] In the circumstances, the Petition is allowed to the extent that the trial Court shall now proceed to frame the proposed additional issue No.2 as reproduced hereinabove and the application of the petitioner shall be deemed to be allowed only to the extent of proposed additional issue no.2 and the trial Court shall frame the said additional issue accordingly. 7] With the aforesaid direction, Writ Petition is disposed of. No order as to costs. (A.A.SAYED,J.) umg/wp2-10