1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.822 OF 2009 Manohar Ramchandra Chaugule since deceased through Legal heirs Hirabai Manohar Chaugule & Ors. ..Appellants versus The Central Railway ..Respondent Mr.Pradeep Kadam for the appellants Mr.A.N.Samant for the respondents CORAM : R.Y.GANOO, J. DATE : 18th JUNE, 2009. P.C: 1. The appellants claim to be the owners in respect of CTS No1/41 admeasuring 2385 sq. yards situated at Mumbai and according to the appellants on a particular date they found that the respondents, namely the Railway Authorities have encroached on the land owned by the appellants, more particularly set out in the plaint Exhibit A to 2 the suit. The appellants felt aggrieved by the action on the part of the respondents and therefore instituted S.C.Suit No.2616 of 2001 in the City Civil Court at Bombay. Along with the plaint a rough sketch was drawn and the encroached portion by the railway was indicated by paint Nos. A, B. C and D. According to the appellants the Railway committed encroachment in regard to the encroached the portion as A, B, C and D and were to construct a wall. According to the appellants, during the time when the construction of the wall was incomplete the appellants approached the Court and obtained interim relief so as to see that the wall is not complete. The appellants had full dressed trial. The learned Judge of the City Civil Court granted full opportunity to the parties to place before the Court their respective cases in as much as the appellants examined only two witnesses whereas the respondents examined their witnesses, including Mr. Rao, an Engineer. The learned trial Judge after considering the entire record dismissed the suit by Judgment and 3 Decree dated 9.4.2009. 2. Against this Judgment and Decree dated 9.4.2009 the appellants have instituted the present appeal. 3. Learned Advocate Mr. Kadam and learned Advocate Mr.Samant appearing on behalf of the appellants and respondents respectively were extensively heard. 4. The learned trial Judge had dismissed the suit on two main counts, namely the appellants failed to show that the respondents committed tresspass on the property owned by the appellants and that the appellants had not jointed Union of India as party defendant though the alleged activity was said to have been done by the railway department as part and parcel of Union of India. The learned trial Judge also dismissed the suit on the ground that required notice under Section 80 of CPC was not given to the Union of India. 4 5. Before this Court, learned Advocate Mr.Kadam raised the points on the basis of which the learned trial Judge had dismissed the suit. I indicated to learned Advocate Mr.Kadam that this Court may not go into the points on the basis of which the learned Judge dismissed the suit on what may be referred to as technical points. It is to be noted that the learned trial Judge had recorded a finding that the Appellants have failed to show that the respondents have committed tresspass as alleged. I indicated to the learned Advocate for the appellants that if the appellants can show that the finding recorded on the main point as mentioned is not correct then the appellants are entitled to have this appeal admitted. It is with these observations the hearing of the first appeal was conducted at the stage of admission. 6. Learned Advocate Mr. Kadam was afforded opportunity to point out on the basis of record, including the evidence to show as to how the learned Judge erred in arriving at the conclusion 5 that the appellants failed to show that the respondents had committed tresspass on the property. 7. In so far as this aspect is concerned, learned Advocate Mr. Kadam had drawn my attention to the evidence of Mr. Sunil, P.W.1 i.e. Plaintiff No. 1(b) and had submitted that in the evidence of this witness there is specific evidence that the railways-respondents have committed tresspass in regard to the area which is set out in the plaint. It must be mentioned that in tresspass action it is absolutely necessary for the plaintiffs who allege that the tresspass has been committed to have placed appropriate evidence with reference to the position as regards the boundary line, and then the plaintiff has to show the portion which is said to have been encroached and then bring appropriate evidence to show that the defendant has committed tresspass. In my view, the bare word of the plaintiff whereby he states that the defendant has committed tresspass can t be 6 accepted for the purpose of saying that the plaintiff has made out a case as regards the tresspass. 8. I have considered the evidence placed on record on behalf of the appellants and the appellants have not been able to make out a case even before this Court that the respondents have committed a tresspass as alleged. The learned trial Judge has considered the evidence placed before him on behalf of appellants and has held against the appellants. I see no reason to defer from that view. 9. In the present case the railways have produced a map showing the situation at site which is at Exhibit 33 and which was exhibited in the course of the trial. Similarly, another map Exhibit 35 was also produced in the course of evidence which is the City Survey Map which showed the situation which existed sometime back. It was for the appellants to bring appropriate evidence on the 7 strength of these two maps Exhibit 33 and Exhibit 35 by securing admission from the witness Mr. Rao that the railways have committed tresspass. That has not been done. Even otherwise on the strength of these two maps it was even possible for the appellants to bring appropriate evidence on record to show that the railways have committed tresspass. That has not happened. 10. After having gone through the record it is clear that the appellants have failed to show that the railways have committed tresspass on the land owned by the Appellants. If this be so, the learned trial Judge was right in arriving at the conclusion that the appellants have failed to make out a case of tresspass. If this be so, there is no reason to interfere in the judgment and decree delivered by the learned trial Judge on 9.4.2009 and the appeal is required to be dismissed. 11.For the reasons stated aforesaid, the First Appeal is dismissed. In the facts and 8 circumstances of the case, there shall be no Order as to costs. 12.In view of dismissal of this appeal, Civil Application No.2333 of 2009 does not survie and the same dismissed with no Order as to costs. (R.Y.Ganoo, J.)