1 S.A.350.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 350 OF 2010 Suresh Prushottam Shukla, Age : 53 Years,Occ.: Service, R/o Jainagar,Taluka Shahada, District Nandurbar. ...APPELLANT. VERSUS Madhukar Purushottam Shukla Age :65 years,Occup.:Business, R/o Jainagar,Taluka Shahada, District Nandurbar. ...RESPONDENT. ... Shri.J.R.Shah, Advocate for Appellant. Shri.Mukul S.Kulkarni,Advocate for Respondent. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 11th JANUARY, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. Unsuccessful appellant-Original Plaintiff has preferred present Second Appeal challenging the Judgment and order of dismissal of Regular Civil 2 S.A.350.10 Appeal No. 19 of 2004 rendered by learned Ad-hoc District Judge-2, Shahada on 25.6.2007, confirming the Judgment and order of dismissal of the suit, passed by Civil Judge, Junior Division, Shahada, in Regular Civil Suit No. 60 of 1999 on 30.04.2004 filed by the appellant/plaintiff herein. 3. The parties are referred hereinafter as per their original status i.e. Plaintiff and defendant. 4. Plaintiff herein filed Regular Civil Suit No. 60 of 1999 against the defendant in the Court of Joint Civil Judge (Junior Division), Shahada for perpetual injunction, restraining the defendant from making encroachment and construction on the suit land. Defendant filed written statement and denied ownership and possession of the plaintiff over the suit property and raised contention that the suit is bad for non-joinder of necessary parties. 3 S.A.350.10 5. The plaintiff also moved an application to amend the plaint in respect of shed allegedly erected by the defendant illegally in the suit property and prayed for mandatory injunction thereof and to remove the encroachment made on the suit property. Moreover, Court Commissioner was also appointed at the instance of plaintiff to inspect the suit premises and to submit his report. However, after adducing evidence by the parties, learned trial Court dismissed the suit. 6. Being aggrieved and dissatisfied with the dismissal of the suit, plaintiff preferred Regular Civil Appeal No. 19 of 2004 before Ad-hoc District Judge-2, Shahada. However, learned Ad-hoc District Judge-2, Shahada also dismissed the Appeal preferred by the plaintiff, on 25th June, 2007 and concluded that plaintiff failed to prove his ownership and possession over the suit property, as well as plaintiff failed to prove alleged encroachment over the suit property. Hence, being aggrieved by the concurrent findings 4 S.A.350.10 of Trial Court as well as First Appellate Court, plaintiff has preferred present Second Appeal before this Court raising substantial question of law and grounds mentioned therein. 7. However, it appears that plaintiff has wrongly described the suit property and even description of the suit property given by the plaintiff appears to be vague. He has not completely described the suit property. He has not given exact measurement of Gram Panchyat house No. 205 and vacant land, which according to him, is part and parcel of Gram Panchyat House No.205. Besides that, admittedly, the subject matter of the suit is immovable property and in view of Order VII Rule 3 of the Code of Civil Procedure, it is incumbent upon the plaintiff to give sketch along with detail measurement of land and alleged encroachment thereon, but plaintiff failed to comply with the said provision. 8. Keeping in mind the said aspect, and coming 5 S.A.350.10 to testimony of plaintiff at Exh.57, where he admitted that vacant land situated towards northern side of House No.205 is not owned by him, as well as he has not produced any documentary evidence in that respect and the said very admission clinches the issue in controversy. Besides that, the learned Trial Judge has categorically observed that the plaintiff has failed to prove and establish his ownership and possession over the vacant land situated towards southern side of Jainagar-Kondawal road which, according to Commissioner, report is ad measuring approximately about 25 feet X 20 Feet and consequently, decided the issue rightly. 9. In the circumstances, no substantial question of law could be formulated in the present Second Appeal under section 100 of the Code of Civil Procedure. Hence, present Second Appeal deserves to be dismissed refusing leave to file an Appeal to the plaintiff. 6 S.A.350.10 10. In the result, present Second Appeal stands dismissed. Leave to file Appeal also stands refused. Sd/- [SHRIHARI P.DAVARE, J.] MTK