1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 331 OF 2009 Datta s/o Gyanoba Salve .. APPELLANT VERSUS Maroti s/o Ganpatrao Dhoke (abated ) & others .. RESPONDENTS Shri N.N. Shinde, Advocate for the appellant. ===== CORAM : R. M. BORDE, J. DATE : 31 st August, 2009. PER COURT : 1 This is an appeal by original plaintiff raising exception to the judgment passed by the 2 nd Additional District Judge, Parbhani on 30-3-2001 thereby allowing the appeal presented by the original defendants and setting aside the judgment passed by the trial court. 2 Appellant / original plaintiff instituted Regular Civil Suit no. 541/1986 2 claiming declaration and perpetual injunction against the respondents. According to him, he is ex-serviceman and he had applied to the District Collector for grant of plot o بland for his residence. His application was considered and plot admeasuring 60 ft. X 60 ft. was allotted to him by respondent no. 2 under the directions of defendant no. 1 in the year 1982. According to him, he was put in physical possession of the plot. However, defendants are trying to disturb his possession. Subsequent to allotment, it was noticed that survey no. 435 of Gangakhed was already occupied by many hutment dwellers. Plaintiff claims that he is in possession of the said land since 1982. Plaintiff presented an application in the year 1984 seeking construction permission from the Municipal Council. The Municipal Council failed to issue permission for construction nor has refused the same. According to him, therefore, by virtue of provisions of law, permission is deemed to have been accorded. It is his further contention that he has constructed zinc sheet shed over the plot in the year 1982 and and he is in possession thereof since then. It is his further contention that on 12-11-1986 the employees of the Municipal Council came to the spot and pulled down the structure. Plaintiff is still in occupation of the suit plot. It is the contention of the plaintiff that action on the part of defendant no. 2 is illegal and as such plaintiff claims decree of injunction. 3 3 Defendant no. 2 Municipal Council appeared and resisted the suit by filing written statement. Defendant no. 2 has controverted the contentions raised by plaintiff in respect of allotment of 60 ft X 60 ft area out of land survey no. 435 of the plaintiff. According to defendant no. 2, an area to the extent of 30 ft.X 30 ft out of survey no. 435 was allotted to the plaintiff. Area claimed by plaintiff which is part of survey no. 249 has been allotted by the Municipal Council to its employees and they are in possession thereof. Defendant no. 2 therefore prays for dismissal of the suit. 4 During the pendency of the suit, defendant nos. 3 to 5 who were in occupation of the disputed plot appeared and presented application for their impleadment in the suit. Application was granted and they were impleaded in the suit. Defendant nos. 3 to 5 contended that they have been allotted plot out of survey no. 249 and are in possession thereof. Plaintiff has tried to commit encroachment over the plot out of survey no. 249 which was rightly removed by the Municipal Council. 5 Trial court after considering the evidence lead by the parties held in favour of the plaintiff and granted decree in his favour thereby restraining 4 the defendants from causing interference over the plot admeasuring 60 ft X 60 ft out of survey no. 435 as well as survey no. 249. Defendant nos. 3 to 5 presented an appeal bearing Regular Civil Appeal no. 153/1994 to the District Court, Parbhani. Appeal was heard and disposed of by the 2 nd Additional District Judgge, Parbhani who was pleased to allow the same by judgment an decree dt. 30-3-2001. 6 It has been recorded by the first appellate court that as per the documentary evidence placed on record i.e. allotment letter at exh. 77, area initially mentioned in the certificate is 30 ft X 30 ft and allotment is made out of land survey no. 435. Area written in the allotment letter appears to have been changed and the same is overwritten as 60 ft X 60 ft. It is not known as to how the corrections are effected in the certificate. Reliance is also placed on the report at exh. 124 submitted by the Chief Officer to the Collector on 14-2-1981. It appears from the report that initially an area to the extent of 30 ft X 30 ft out of survey no. 435 was offered to the plaintiff. He has tendered application to the Collector and requested for additional area of 30 ft X 30 ft. Tahsildar, Gangakhed directed the Municipal Council to allot additional area of 30 ft X 30 ft on payment of reasonable price. However, plaintiff failed to deposit the price of additional area of 30 ft 5 X 30 ft. Plaintiff after seeking permission from the Municipal Council, has erected hut in land survey no. 249 which was already alloted to the employees of the Municipal Council. Infact, from perusal of the report as well as on perusal of the certificate it transpires that plaintiff was not alloted an area to the extent of 60 ft X 60 ft as contended by him. Finding of fact has also been specifically recorded by the first appellate court that the plaintiff has failed to pay additional charges for the area and the additional area which is claimed by him is out of different survey no. i.e. survey no.249. In these circumstances, the first appellate court has held that plaintiff has failed to establish his case in respect of his entitlement to additional area of 30 ft X 30 ft out of land survey no. 249. First appellate court has also considered the relevant oral evidence lead by the parties including certain admissions in the cross examination given by the plaintiff. Considering the relevant circumstances, first appellate court has reversed the findings recorded by the trial court. In my opinion, view adopted by the first appellate court appears to be reasonable and proper. Arguments advances are essentially matters relating to appreciation of evidence. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 6 7 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa331.09.odt