1 33.sa-759-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION jmi SECOND APPEAL NO. 759 OF 2010. Mohd. Hasan Abdul Raheem & Ors. ..Appellants. vs. Khurshid Ahmed Mohd. Yaqoob & Ors. ..Respondents. .... Mr. M.M. Sathaye, for Appellants. Mr. N.R. Bubna, for Respondent No.1. .... CORAM : G.S. GODBOLE, J. DATE : 24TH AUGUST 2011. P.C. : Heard Mr. Milind Sathaye, Advocate for the Appellants. Mr. Bubna appears for the Respondent No.1 - original Plaintiff in R.C.S. No. 241 of 2001 filed by the Respondent No.1, which was decreed by the Learned 3rd Joint C.J.J.D., Malegaon by Judgment and Decree dated 30th November 2006 and this Decree has been upheld by the Learned District Judge-I, Malegaon by the impugned Judgment and Order dated 24th September 2010 passed in Civil Appeal No. 52 of 2008. 2. The Courts below have concurrently recorded a finding, which can be seen from paragraph 16 of the Judgment of the Trial Court, which reads thus :- “From the above discussion, it is clear that there are public roads in between the suit properties and property of Defendants and the Defendants have encroached upon the public road on the northern and southern side of the suit properties.” 2 33.sa-759-10 3. The case of the Appellants/Defendants of having become owners by adverse possession has also been concurrently rejected. The Trial Court has recorded in paragraph 23 of its Judgment that the Plaintiff has obtained the requisite permission from the Planning Authority, Malegaon Municipal Corporation and has a right to develop his property by using access/approach roads on which the encroachment made by the Defendants has been found to be proved and hence that causes obstruction for ingress and egress of the Plaintiff to his own property and his legal right to develop his own property. These findings have been upheld by the First Appellate Court. 4. Mr. Sathaye advanced the following arguments :- (i) In view of the findings recorded by the Trial Court in paragraph 16 of the Judgment, no Decree could have been passed in favour of the Plaintiff since the Plaintiff is admittedly not the owner of the portion on which the structures of the Defendants are standing and though the Malegaon Municipal Council, now a Corporation, may be the owner, it has not been impleaded as party to the Suit and the Plaintiff does not have locus to file the Suit. (ii) The Malegaon Municipal Council was a necessary party to such Suit and hence, in its absence, the Suit should have been dismissed. (iii) The provisions of Order VII Rule 3 of Code of Civil Procedure, 1908 are mandatory and the same have not been complied with by the Plaintiff. 5. I have considered all the submissions. With a finding that the Defendants / Appellants have encroached on public roads, which is a pure finding of fact based of appreciation of evidence, the relief 3 33.sa-759-10 which is granted for directing removal of structures on public road, cannot be said to be the relief against Malegaon Municipal Council, viz. Now a Corporation; but, in fact, is a relief which would be beneficial to the Municipal Corporation. The Corporation was therefore not a necessary party to the Suit. 6. The question of locus of the Plaintiff and the entitlement of the Plaintiff to the relief regarding the removal of obstructions on the public road has been duly considered by the Trial Court in paragraph 23 of its Judgment and the said reasoning is in consonance with law. Once the case of the Defendants of having become owners by adverse possession was rightly rejected, and once their structures, erected on a public road, were found to be obstructing the ingress and egress of the Plaintiff; whether the ingress and egress is completely blocked or partially blocked, is immaterial. 7. The third argument regarding the non-compliance of order VII Rule 3 has also been properly dealt with, in the sense that the Suit was not a Suit for removal of encroachment in the property of the Plaintiff and hence there was no requirement to file a sketch map with the Plaint. 8. I concur with the findings recorded by the Trial Court and the Appellate Court. In my opinion, no question of law arises in the Second Appeal and the same is summarily dismissed. In view of the fact that Second Appeal is dismissed, the Civil Application No. 1984 of 2010 does not survive and the same is dismissed. 9. At this stage, Mr. Sathaye makes an oral prayer for staying execution of the Decree for a period of twelve weeks to enable the 4 33.sa-759-10 Appellants to file S.L.P. and challenge this order. The request is very strongly and vehementally opposed by Mr. Bubna for the Respondent No.1. However, in the interests of justice, the Decree shall not be executed for a period of 12 weeks, subject to the following conditions. – (i) that within four weeks from today the Appellants shall file an undertaking in this Court stating that except them no one else is in physical possession of the structures, which are found to be situated on public roads, (ii) they shall not part with possession and or create third party rights of whatsoever nature, (iii) if they fail to obtain the interim relief from the Hon’ble Supreme Court, within six weeks thereafter and without obstructing the execution of the Decree, they will remove their offending structures at their own cost. [ G.S. GODBOLE, J. ]