IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 994 OF 2005 SECOND APPEAL NO. 994 OF 2005 SECOND APPEAL NO. 994 OF 2005 Shri Sudhakar Kashinath Jangam ... Appellant V/s Shri Shaikh Mohmad Hanif Maganbhai & anr. ... Respondents Mr. Shiv Moforia for the appellant. Mr. J. Shekhar for respondents. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. DATED: 29TH SEPT., 2005 DATED: 29TH SEPT., 2005 DATED: 29TH SEPT., 2005 P.C.: P.C.: P.C.: 1. The appellant has preferred this appeal against the judgment and order passed by the Addl. District Judge, Pune, dated 17.1.2002 dismissing the plaintiff’s suit and allowing the counter-claim of the defendants i.e. present respondents, whereby the present appellant was perpetually restrained from raising construction in the suit property. The Block Development Officer was also directed to make enquiry of the entry of the suit property and correct the entries and take necessary actions against the persons responsible for the same. 2 2. I have heard the learned counsel for both parties. Perused the record. 3. The plaintiff filed the suit for perpetual injunction simplicitor against the defendant alleging that the open space of 25’ x 50’ was owned and occupied by him and till today no city survey proceeding is taken place in the village. Recently, city survey numbers are given to the properties however, they were not confirmed. It was further contended that the suit property is ancestral property of the plaintiff. Previously there was a cattle shed of plaintiff, however, at present the cattle shed is collapsed and it is an open space. The suit property is recorded in the name of the plaintiff in Grampanchayat record and the number of the suit property is changed by every assessment made by the Grampanchayat. In the year 1962-63, the number of suit property was 97, whereas in 1979-80 it was 116, in 1988-89 it was 128 and recently it was numbered as 1. After city survey measurement, the C.T.S. No. 102 is given to the suit property. The houses of defendant Nos. 1 and 2 are situated towards western side of the suit property and they have their own way to enter into their properties from western side 3 of the suit property and they have no concern with the suit property. However, recently they have unlawfully tried to construct a platform in the suit property and hence the suit is filed. Defendants contested the suit inter-alia denying the allegations made by the plaintiff and also filed the counter-claim against the plaintiff and sought dismissal of the suit. 4. The Trial Judge adjudicated the dispute on merits and on the basis of available evidence came to the conclusion that plaintiff the had proved his exclusive possession only to the extent of C.T.S. No. 102 and rest of the claim was negatived. Counter claim of the defendants was allowed to the extent regarding the construction of the plaintiff in C.T.S. Nos. 103 and 104 and also 5 ft. road situated adjacent to C.T.S. No. 102 as shown in the city survey map and rest of the claim was rejected and, as such, the decree came to be passed. 5. The appeal was carried to the District Court. The Addl. District Judge after hearing both parties 4 concurred with the findings recorded by the Trial Judge and dismissed the appeal. Hence the present appeal. 6. At the outset, it may be noted that there is absolutely no substantial question of law involved in the appeal and all the issues sought to be raised are the issues of facts which cannot be considered at the stage of second appeal. The learned counsel for the appellant sought to submit that both the Courts below had not taken into account the documentary evidence relating to the suit property. It was submitted that Grampanchayat record was changed every four years regarding the city survey numbers after the assessment. However, the plaintiff has utterly failed to show under what rules or legal provisions the numbers are changed. It was submitted that it was a practice sought by the Grampanchayat, however, said practice cannot be held to be legal or valid without force of law. Moreover, the practice itself is also not proved by cogent evidence and, therefore, mere statement made by the Gram Sewak cannot be accepted for that aspect. Apart from this aspect, cross-examination of Gram Sewak who was examined on behalf of the plaintiff himself is seek to non-suit the plaintiff with regard to the other property. Suffice to say, therefore, both the Courts below have 5 properly appreciated the evidence on record with regard to the factual aspects and, therefore, it would brook no interference and especially when there is no substantial question of law involved in the appeal. In the result, the appeal stands dismissed with no order as to costs. Consequently, Civil Application No. 660 of 2005 also stands dismissed with no order as to costs. .....