1803sa420.08.sxw 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR SECOND APPEAL NO. 420 OF 2008 Sau. Lilabai Bhaurao Bramhanwade – Appellant - Versus- Venkaji Chinnu Choudhari & others – Respondents Shri S. J. Gadmade, Advocate for the appellant. Shri N. R. Bhishikar, Advocate for respondent Nos. 1 to 3. Shri G. N. Khanzode, Advocate for respondent No. 4. ------------------------------------------------------------------------------------------------------------------------------- CORAM: B. P. DHARMADHIKARI, J . DATED : 18TH MARCH, 2009. P. C. : 1. Heard Shri Gadmade, Advocate for the appellant, Shri Bhishikar, Advocate for respondent Nos. 1 to 3 and Shri Khanzode, Advocate for respondent No. 4. 2. The suit filed by the plaintiff for permanent injunction and damages was decreed by Joint Civil Judge (Jr. Dn.), Gadchiroli. Defendant No. 4 Naktu Shende then filed regular civil appeal No. 61 of 2006 and that appeal has been allowed on 30//2008 by Ad-hoc District Judge-I, Gadchiroli. In this background, Advocate Gadmade 1803sa420.08.sxw 2/5 argues that lower appellate Court has given undue importance to the loose statement made by son of the plaintiff who, at the relevant time was of tender age and, therefore, was not aware of the real facts. He invites attention to the judgment of the trial Court to point out how the independent witnesses have deposed in favour of the plaintiff. He states that the Government Surveyor had carried out measurement in presence of all the parties and found that there was encroachment by Naktu Shende on the field of plaintiff. After measurement, the excess land in his possession was delivered by Naktu to the plaintiff and then plaintiff placed her bunds and thus demarcated her boundary by taking her possession. After few months again the said boundary marks were disturbed and hence suit was required to be filed. 3. He contends that the trial Court has correctly appreciated the evidence on record and finding of lower appellate Court that possession of encroached portion was not given to the plaintiff is not supported by material on record. He further points out that defendant No. 5 who was respondent No, 5 in regular civil appeal expired on 05/5/2007 and her legal heirs were not brought on record. He fairly states that in the present second appeal her legal 1803sa420.08.sxw 3/5 heirs are impleaded and they are also served. He points out that civil application Nos. 99/2009, 8723/2008 and 8724/2008 are filed by the appellant pointing out this development and for setting aside the abatement seeking permission to bring on record the legal heirs. 4. Advocates Shri Bhishikar and Shri Khanzode, on the other hand, state that the lower appellate Court has based its finding on evidence which is available on record and said finding is therefore not perverse and no substantial question of law arise. They further state that the present appellant was respondent No. 1 in appeal and the dispute was between plaintiff and other defendants. It is stated that one of the defendants had filed appeal and hence there is no question of any abatement of regular civil appeal. 5. After hearing the parties, it is clear that original defendant No. 4 Naktu alleged to be one of the encroachers had filed regular civil appeal No. 61 of 2006 and he had joined other four defendants as party-respondents. Defendant No. 3 in suit was respondent No. 3, defendant No. 4 in suit was respondent No.4, plaintiff was respondent No. 1 and respondent No. 5 who alleged to have committed encroachment was respondent No. 5. It is, therefore, 1803sa420.08.sxw 4/5 apparent that the appeal filed by Naktu challenging the finding of encroachment on plaintiff's land and, therefore, the dispute was between Naktu and plaintiff Lilabai. Death of another encroacher i.e. respondent No. 5 Smt. Demabai, therefore, has got no bearing in so far as the present controversy is concerned. 6. The lower appellate Court has found that son of plaintiff admitted that the land and its boundaries were as it is and there was no alteration. In other words, he accepted that possession of land was handed over to them by the maternal uncle and the boundaries then in existence remained unaltered. The record also show that in cross examination P. W.-2 Naktu Bangde accepted that there was no giving or taking of land on the spot after the measurement. Thus, this witness also falsified the story of the plaintiff. On the basis of this material, the lower appellate Court has concluded that plaintiff was not placed in possession of the land and she could not therefore establish that she was in possession of the alleged encroached portion. The lower appellate Court found that the suit, therefore, ought to have been filed for removal of encroachment and for recovery of possession and the suit simplicitor for injunction was therefore not maintainable. 1803sa420.08.sxw 5/5 7. It is obvious that findings are based on the evidence on record and, therefore, the same cannot be labelled as erroneous or perverse. Advocate Shri Gadmade has urged that entire evidence on record has not been considered. There is no scope for reappreciation of evidence in the second appeal, but then the material brought to the attention of this Court by him also shows that there was some dispute between the parties when plaintiff tried to put her boundary marks and it further appears that the land was lying barren for number of years before plaintiff tried to cultivate it. In this background, when the suit filed is only for injunction, no exception can be taken to the judgment/decree of lower appellate Court in the second appeal. No substantial question of law arises. Second appeal is dismissed. JUDGE wwl