1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD REVIEW PETITION NO. 52 OF 2009 IN SECOND APPEAL NO. 294 OF 2008 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Shri P.R.Katneshwarkar Advocate for petitioner-original appellant. Shri G.N. Chincholkar, Advocate for Respondent Nos.1 & 2-original respondent Nos.1 & 2. 1. Advocate Shri Katneshwarkar submitted that this court decided Second Appeal No.294 of 2008 on 18.2.2009 by raising only one question of law which is enumerated in paragraph 4 of the judgment, although there were two more points of law (No.V and VIII) raised in the second appeal which are not considered. Those points of law are reproduced in paragraph 5 of present review petition which are as 2 under; "V.Whether the suit was framed in accordance to Order 1, Order 2 and Order 4 of the Civil Procedure Code. "VIII.Whether the courts below have read the written statement filed by defendant No.1 i.e. Village Panchayat and has decided the matter on the basis of it. The village Panchayat nowhere claims that the suit lands belongs to it. In absence of such pleading and evidence the courts below erred in holding that village Panchayat is owner of the suit land. This finding is perverse and without evidence in respect of ownership and, therefore, perverse finding involves substantial question of law. " 2. Thus, according to Advocate Shri Katneshwarkar, ground Nos. V and VIII of the appeal memo were not considered 3 by the court. However, it may be noted that this court (Coram:R.M.Borde,J.) on 14.11.2008 has passed following order. " The respondent/ori. plaintiff in the appeal has presented the suit against Village Panchayat and the defendants claiming that defendant/appellant has encroached upon the property belonging to Village Panchayat. Admittedly, the plaintiffs have no personal interest in the disputed property and the interest claimed by the plaintiff is in capacity of a villager and the property is said to be belonging to the village panchayat. A question falls for consideration is whether such a suit is entertainable under provisions of CPC. Considering the issue involved in the matter, I deem it appropriate to decide the appeal at the admission stage. The respondents are already served. 4 The parties are put to the notice that the appeal would be disposed of finally at the admission stage. Call for R and P within two weeks. Place the matter on 28/11/08." 3. After hearing the parties, I was also of the view that the only question of law that arises is whether such a suit is entertainable under the provisions of CPC and the issue, which the substantial question of law framed by the court and on which the parties have submitted their arguments, is as follows. " Whether respondent Nos. 1 and 2 who were original plaintiffs were entitled to file suit in representative capacity regarding alleged encroachment made by the plaintiff into the property of respondent No.3-Grampanchayat ?" 5 4. Advocate Shri Katneshwarkar is fair enough to state that he has argued on the question of law framed in paragraph 4 of the judgment. 5. Advocate Shri G.N. Chincholkar for Respondent Nos. 1 and 2 submitted that all the arguments advanced by the parties were considered by this court while deciding the Second Appeal and, therefore, there is reason to review the judgment in second appeal. 6. In my considered opinion the issues which are sought to be raised by this review petition are, in fact, covered by the issue framed and decided by this court. This court has considered the written statement filed on behalf of Defendant No.1 and has come to the conclusion that the officers of the Grampanchayat have joined hands with the appellant i.e. present review petitioner and are helping him. This court has also considered the provisions of C.P.C. and 6 more particularly Order 1 Rule 8. 7. Hence, this review petition has no merits and the same, therefore, deserves to be and is accordingly dismissed. Date:30/09/2009 (P.R.BORKAR, J.) pnd/rp52.09