1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 595 OF 2008 WITH CIVIL APPLICATION NO. 1450 OF 2008 Bhau Banaji Ramane........Appellant versus Kisan Nivrutti Sutar since deceased through L.Rs. Baban Nivrutti Sutar ........ Respondents. Mr. A.A. Garge adv. for the Appellant Mr. S.M. Gorwadkar adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 3rd APRIL, 2009. P.C.: 1. This secod appeal is at the behest of original defendant against whom a suit for removal of encroachment and possessiosn came to be decreed. The suit filed by the respondent is based on title and it is averred in the plaint that the defendant is the tresspasser who had encroached on the land owned by the plainaiff. Before the trial court the plaintiff examined the material witness viz. the surveyor who had drawn the map and proved the same which goes to establish the factum of encroachment by the defendant on the land owned by the plaintiff. It is relevant to note that the defendant does not claim 2 any legal right whatsoever to remain in possession, however tried to contend that the encroachmet is not on survey no. 671 but is on survey no. 648. No other defence is raised. After considering the evidence including the evidene of surveyor a finding of fact is recorded by the trial court that the plainaitff has established the encroachment. Aggreived by the judgment and decree passed by the trial court, the appellant carried a first appeal before the District judge and the District Judge concurred with the view taken by the trial court and dismissed the first appeal and hence this second appeal. 2. The learned counsel for the appellant has contended that the first appellate court has committed an illegality in placing reliance on the judgment delivered in regular civil suit Nos.174/84 and 173/92 which were the suits instituted by the plaintiff agaist third parties. The defendant was not a party to the said suit. 3. Per contra the learned counsel for the respondent has submitted that the first appellate court has not placed reliance on the judgment in the said suit but only referred to the fact that other two suits filed against different encroachment by the plaintiff were also decreed. It is submitted that the survey report was proved in the present suit by examining the surveyor. At any rate, reference to the judgment in the other suits does not vitiate the impugned judgment and decree. It is not in dispute that 3 against the judgment and decree in one of the suits, against a different encroacher was challenged by filing the first appeal and the first appellate court has remanded the matter back to the trial court and after remand, the suit came to be dismissed. However the plaintiff has challenged the said judgment and decree passed by the trial court dismissing the suit by filing the appeal and the appeal is stated to be pending. Perusal of the impugned judgment reveals that the judgment is not based on the judgment delivered in the other two suits to which the defendant was not a party but only a reference is made, may be to impress that the plaintiff is the owner of the land. No substantial question of law emerges for consideration in the appeal and hence the appeal deserves to be summarily dismissed. 4. At this stage the learned counsel for the appellant submits that the appellant is residing in the structure which is turned as an encroachment since the year 1975 and as he is residing there since last about 35 years he need to be granted sufficient time to make alternative arrangement for shifting. There is merit in the submission. In all fairness the learned counsel for the respondent does not oppose the said prayer for grant of time to vacate. However, he submits that a usual undertaking need to be procured from the appellant if he is permitted to occupy the suit property. In the result I pass the following order. 4 5. The appeal is summarily dismissed. The appellant is granted time of one year from today to vacate the suit structure by removing the encroachment, however subject to the condition that the appellant shall file an undertaking in this court that he shall deliver peaceful and vacant possession of the property to the respondent/plaintiff on or before expiry of a period of one year from today. The undertaking shall further contain that the appellant shall not induct anyone else in possession nor shall part with any possession. The undertaking to be filed within four weeks from today. 5. In view of the dismissal of the appeal, the civil application does not survive and the same is also dismissed. (A. P. DESHPANDE, J.)