:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 34 OF 2008 APPEAL NO. 34 OF 2008 APPEAL NO. 34 OF 2008 Sopan Baji Sawant & Anr. .... Appellants. V/s. Ramesh Shankar Sawant & Ors. .... Respondents. Mr. Prataprao Shinde for the Appellant. None for the Respondents. CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 26TH FEBRUARY, 2008. : 26TH FEBRUARY, 2008. : 26TH FEBRUARY, 2008. P.C. P.C. P.C. : : : . Heard Advocate appearing for the Appellants. The Appellants are the original First and Second Defendants. The First Respondent is the original Plaintiff who filed the suit for removal of encroachment. The suit was decreed by the Trial Court. The Appeal preferred by the present Appellant before the District Court has been dismissed. 2. The submission of the learned Advocate for the Appellant is that in the year 1980, the First Respondent filed a suit simplicitor for injunction and during the pendency of the suit, the D.I.L.R. was appointed as a Court Commissioner. he submitted that now the First Respondent is relying upon the report of the D.I.L.R. which was submitted in the earlier suit for contending that the report and map of the D.I.L.R. shows :2: encroachment made by the Defendants. He submitted that the relief of removal of encroachment ought to have been claimed by the First Respondent in the earlier suit. He submitted that as there was no leave granted to file a separate suit for removal of encroachment, the suit itself was barred by the principles incorporated under sub-Rule 3 of Rule 2 of Order II of the Code of Civil Procedure, 1908. The second submission is that though the encroachment was allegedly made in the year 1980, the suit for removal of encroachment was filed in the year 1994 and therefore, the same was barred by limitation. The third submission made by the Advocate for the Appellant is that at the time of trial before the Trial Court, the original map drawn by D.I.L.R. showing the alleged encroachment was not produced. 3. I have considered the submission. Both the Courts below and especially the Appellate Court have noted that there is no dispute between the parties as regards the ownership of the First Respondent over the suit properties. In so far as the first contention is concerned, I find that the same was not urged before the Courts below and therefore, the same cannot be allowed to be raised for the first time in the Second Appeal as the issue raised is a mixed question of law and facts. 4. Apart from this, the earlier suit filed by the first Respondent was simplicitor for injunction and in the :3: present suit what is averred is that during the pendency of the said earlier suit, in breach of order of injunction, the Defendants in the present suit carried out encroachment. In so far as the second submission is concerned, the suit was filed by the First Respondent on title for removal of encroachment. Therefore, the suit will be governed by Article 65 of the Limitation Act, 1963 which provides that the cause of action will commence from the date on which the possession of the Defendant becomes adverse. Issues framed by the Trial Court shows that the plea of adverse possession was not urged before the Trial Court. There is no material on record to show that the Appellants’ possession was hostile to the knowledge of the First Respondent from the year 1980 onwards. Now, coming to the third submission, the Appellate Court has noted the original survey map is available on the record of the execution proceedings of the earlier suit filed by the First Respondent and therefore, the Appellate Court has directed that the said maps will be part and parcel of the decree of the removal of encroachment. 5. No substantial question arises. The Second Appeal is accordingly dismissed. JUDGE JUDGE JUDGE