1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.604 OF 2009 1 Vasantlal Chunilal Chopada, age: 57 years, Occ: Business; 2 Mansukhlal Hansraj Kathed, age: 70 years, Occ: Business; 3 Dharyadhar Tukaram Yeolekar, since deceased, through his L.R.: 3-1) Jayant Dharyadhar Yeolekar, age: 48 years, Occ: Business; 4 Manumal Meghraj Talreja, age: 68 years, Occ: Business; All R/o Kapad Bazar, Compound of Mission High School, Ahmednagar, Tq. & Dist. Ahmednagar. 5 Sau.Mohini Babalal Sonagra, age: 48 years, Occ: Household/ Business, R/o Kalubag Galli, Ahmednagar, Tq. & District Ahmednagar. Appellants Versus 1 Rayat Shikshan Sanstha, Ahmednagar, through its Secretary – Dr. Ashok Shankarrao Bhoite, age: 45 years, Occ: Principal, Address: Rayat Shikshan Sanstha, Satara, District Satara. 2 Kailas Gangadhar Mohite, 2 age: 57 years, Occ: Service, Head Master, Laxmibai Bhaurao Patil Secondary & Higher Secondary Girls High School, Ahmednagar, Tq. & Dist. Ahmednagar. 3 The State of Maharashtra. 4 The Chief Officer, Ahmednagar Municipal Council, Ahmednagar. 5 The Assistant Director, Nagar Rachna, T.V.Centre Road, Ahmednagar. 6 Ashok Bansilal Bora, age: 59 years, Occ: Business; 7 Mohammod Kasam Mohammad Shafi, age: 62 years, Occ: Business; 8 Mohammod Ali Mohammod Shafi, age: 55 years, Occ: Business; Nos.6 to 8 R/o Ganj Bazar, Ahmednagar, Tq. & District Ahmednagar. 9 Ratilal Nensukh Mutha, age: 68 years, Occ: Business; 10 Ramesh Nensukh Mutha, age: 60 years, Occ: Business; 11 Ishwarlal Nensukh Mutha, age: 55 years, Occ: Business; 12 Shokatali Mahamad Shafi, age: 50 years, Occ: Business; 3 13 Gulam Mohamad Shafi, age: 48 years, Occ: Business; 14 Keshav Vasudeo Khisti, age: 60 years, Occ: Business; 15 Vijay Nanjibhai Dedhiya, age: 52 years, Occ: Business; 16 Satishchandra Shaligram Wadhwa, age: 60 years, Occ: Business; 17 Ajay Uttamchand Gugale, age: 45 years, Occ: Business; 18 Guljarilal Gangabisan Gulati, age: 59 years, Occ: Business; 19 Dhairyadhar Tukaram Yeolekar, since deceased, through his legal heirs: 19-A) Shrikant Dhairyadhar Yeolekar, age: 35 years, Occ: Business; 19-B) Hemant Dhairyadhar Yeolekar, age: 40 years, Occ: Business; Nos.9 to 19 R/o Kapad Bazar, Compound of Mission High School, Ahmednagar, Tq. & Dist. Ahmednagar. 20 Sau Nandini Bansilal Sonagra, age: 45 years, Occ: Household/ Business; 21 Sau.Kalawati Madanlal Sonagra, age: 48 years, Occ: Household/ Business; 4 No.20 & 21 R/o At Kalubag Galli, Ahmednagar, Tq. & Dist. Ahmednagar. Respondents Mr.P.M.Shah, Senior Counsel holding for Mr.L.B.Palod, advocate for appellants. Mr.R.N.Dhorde, advocate for Respondents No. 1 & 2. CORAM: R.M.BORDE, J. DATE : 12 th January, 2010. P.C.: 1 Heard Shri P.M.Shah, learned Senior Counsel holding for Shri L.B.Palod, advocate for appellants and Shri R.N.Dhorde, learned Counsel for Respondents No.1 & 2. 2 Original plaintiffs instituted Regular Civil Suit No.382/1993 claiming decree of perpetual and mandatory injunction against Respondents – original defendants. 3 It transpires that suit was initially presented against defendants no.1 to 3 i.e. State of Maharashtra, Chief Officer, Municipal Council, Ahmednagar and Assistant Director, Town Planning, Ahmednagar. Defendants No.4 and 5, who claimed to have acquired interest in the property by virtue of acquisition of same by the State Government, tendered an application for their impleadment in the suit and that application was allowed and defendants no.4 and 5 were permitted to contest the litigation. 4 Plaintiffs contend that they are owners of plots out of C.T.S.No. 2732/14, originally known as `Kayummi Estate’. It is contended that Lay out 5 plan of suit land was sanctioned by the Municipal Council on 05.02.1979 and internal road of 15 feet width was kept available for enjoyment of plot owners. Plaintiffs contend that defendants intend to minimise width of the road by passing a resolution and as such they be restrained. 5 Defendant State Government as well as local authority did not appear and contest the litigation. Defendants No.4 and 5, who have acquired interest in the property by virtue of acquisition of the property by the State and which has been allotted in their favour, presented written statement and contested the litigation. Defendants denied the allegations mentioned in the suit and raised objection to the description of suit property. They contend that suit of the plaintiffs is not tenable and it is also barred by limitation. They denied existence of service road having 15 feet width, as alleged by plaintiffs. According to defendants, in view of the compromise arrived at between plaintiffs and defendants no.1 to 3, properties in question were deleted from land acquisition proceedings. The compromise, although tendered before the Supreme Court, does not disclose existence of internal road, it is contended that only 5 feet width road passing through South-North direction from main gate is made available by the defendants for plot owners. Defendants contend that owners of the plots do not have right to use the road. It is contended that they are running Girls’ school in the acquired portion and availability of the road would definitely create disturbance in the educational activity, which is predominantly for the welfare of Girl students. Defendants, as such, prayed for dismissal of the suit. 6 The trial Court, after recording evidence of the parties, was pleased to grant decree in favour of plaintiffs. 6 7 Being aggrieved by the judgment and decree passed by the trial Court, defendants no.4 and 5 have preferred an appeal being Regular Civil Appeal No.40/2006, which came to be heard and disposed of by District Judge-3, Ahmednagar, who was pleased to allow same by judgment and decree dated 31.03.2009. 8 I have perused the judgments recorded by both the Courts below. 9 Shri Shah, learned Senior Counsel holding for Shri L.B.Palod, advocate for appellants, has vehemently contended that the fact in respect of sanctioning of Lay out plan cannot be controverted. He has also invited my attention to the proceedings of acquisition and in order to demonstrate that acquisition proceeding is in consonance with Lay out plan sanctioned by the Municipal Council in relation to the property under acquisition, it is also pointed out that sale deeds executed in favour of plaintiffs do make a mention in respect of existence of road and as such, it is contended that, plaintiffs are entitled to use the road and defendants cannot be permitted to make any modification and further defendants no.4 and 5 also cannot be permitted to raise any barricades to keep plaintiffs away from enjoyment of the property. 10 Shri Dhorde, learned Counsel appearing for Respondents No.1 and 2, has supported the judgment and decree passed by first appellate Court and contends that instant appeal does not deserve any consideration. 11 It is noted by the first appellate Court that plaintiffs, though claim interest in their favour in respect of the subject road, have not stepped 7 into witness box nor have placed original sale deeds on record. The first appellate Court has recorded that non assertion of their personal interest in relation to the road by plaintiffs is an adverse circumstance and as such they cannot claim any right or entitlement. It is also recorded by the first appellate Court that the litigation is initiated at the instance of original owner who had objected for acquisition proceedings. By virtue of the compromise effected before the Apex Court, only disputed plots were left away from acquisition. It is also pointed out that disputed property was in possession of defendants no. 4 and 5 since 1963 as tenants and they are running a Girls’ school in the premises. Later acquisition of the premises and subsequent sanctioning of development plan in the year 1979 has no effect on the rights of concerned defendants. 12 It is also to be taken note of that defendants are running a Girls’ school and the property being used mainly for the educational activity of girl students. The permissibility of user of road passing just adjacent to the Girls’ school would definitely have an adverse impact on the interest of defendants no.4 and 5 and it would also not be beneficial in the larger interest of girl students studying in the school. It was also pointed out by respondents- defendants that there is a development plan road available for user of all the plaintiffs. 13 Apart from these aspects, the first appellate Court has mainly harped upon the failure of plaintiffs to step into witness box to assert their personal interest and their failure to place original sale deeds on record. In the absence of examination of plaintiffs or anybody amongst them, it cannot be said that plaintiffs have established their personal interest/right in respect of claim raised by them in suit. In order to justify their contention that layout 8 plan road finds mention in sale documents executed in their favour by original owner, sale deeds are also not placed on record and proved. 14 In view of these aspects, I am of the view that reasons recorded by the first appellate Court cannot be said to be perverse or unreasonable. No substantial question of law arises for consideration in the appeal. 15 Appeal, therefore, stands dismissed summarily. Civil Application No.8661 of 2009 does not survive and stand disposed of accordingly. (R.M.BORDE) JUDGE ******* adb/sa60409