1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.147 OF 2011 WITH CIVIL APPLICATION NO.212 OF 2011 1 Shankarlal S. Gupta Age; 70 yrs., Occ: Business 2 Sangamlal S. Gupta Age: 66 yrs., Occ: Business 3 Girdharilal S. Gupta Age: 63 yrs., Occ: Business All residing at 120, Kap Kaneri, Agra Road, Bhiwandi, District: Thane ...Appellants. (Org. Plffs.) v/s. 1 Kap Ali Sarvajanik Mandal Through its Trustee Shri Raghunath P. Padyal Adult, Occ: Unknown, having its office at 55, Kap-Kaneri, Bhiwandi, Dist: Thane. 2 Sakhradevi Yogini Trust Through its President Shri Raghunath P. Padyal Having address at: 55, Kap-Kaneri, Bhiwandi, Dist. Thane. 3 Bhiwandi-Nizampur Municipal Council Through its chief officer, 2 Bhiwandi, Dist. Thane. 4 Government of Maharashtra Through District Collector, Thane 5 The Tehsildar, Bhiwandi Tehsildar Office, Bhiwandi, District: Thane ...Respondents. (Org. Defts.) Mr. Rajesh S. Datar ,adv. For the Appellants. Mr. Sham Walve, adv. For the Respondent Nos.1 and 2. Mrs. S.V.Sonawane, AGP for the R.Nos.4 and 5. Mr. Vinod S. Chate, adv. For the R.No.3. CORAM : J.H. BHATIA, J. DATED : JULY 25, 2011. P.C. 1 Rule. 2 With consent matter is taken up for final hearing immediately. 3 Heard. Perused the pleadings of the parties before the trial Court and the impugned judgment and order passed by the learned District Judge, Thane Civil Appeal No.10 of 2007. 4 To state in brief, the appellants before the Court are original plaintiffs in Regular Civil Suit No.173 of 1989. According to them, they 3 are owners of the land survey nos.433 and 434 situated at Bhiwandi, District: Thane on the basis of sale deed dated 21st October, 1939. Defendant nos.1 and 2 had made encroachment on certain portions of the said land and constructed certain structures, which according to the defendants are temples in existence for a long time. Plaintiffs sought declaration of their title and possession of the encroached portion after removal of the same. Defendants in their written statement denied title of the plaintiffs over the land survey nos.433 and 434. They claim to be in possession and management of the said temples for a very long time. According to them, previously two suits being Special Civil Suit Nos. 182 of 1985 and Regular Civil Suit No. 1298 of 1988 claiming title over the land, over which the said temples are situated. 5 After trial, the learned Civil Judge Senior Division, Thane decreed the Regular Civil Suit No.173 of 1989 filed by the plaintiffs/appellants. Being aggrieved by the said decree, original defendant nos.1 and 2 preferred Civil Appeal No.10 of 2007 raising several grounds. By the impugned judgment and order, the learned District Judge remanded the suit back to the trial Court observing that the description of the suit property was not properly given in the plaint and that it was necessary to identify the property in dispute. For this 4 purpose, the learned District Judge felt that it was necessary for the plaintiffs to make amendment in the plaint and give sketch of the property in dispute. Having made these observations, he remitted the matter back giving opportunity to the plaintiff to make amendment and left open all the contentions of both the parties and also gave opportunity to both the parties to lead additional oral and documentary evidence during trial. After perusal of the plaint and the written statement filed by the defendant, I find that there was never any dispute about the identity of the suit property. In fact, in paragraph 11 of the plaint, defendants had specifically stated that there were two suits, i.e., Special Civil Suit No. 182 of 1985 and Regular Civil Suit No.1298 of 1988 in respect of same subject matter, which clearly shows that parties are well aware about the identity of suit property. Admittedly, Special Civil Suit No.182 of 1985 was filed by the present plaintiffs while Regular Civil Suit No.1298 of 1988 was filed by the defendant no.2. The learned counsel for the plaintiffs/appellants pointed out that the suit filed by the defendant claiming title over the suit property was already dismissed and not only that their first appeals and second appeal is also dismissed. In the appeal memo of the Civil Appeal No.10 of 2007 filed by the defendants 5 in the District Court also nowhere they had contended that the suit property was not properly identified and due to any mis-description and ambiguity in description of the suit property, they could not defend the suit properly. It appears that parties had no dispute about identity of the suit property. Only because sketch map of the property under the alleged encroachment was not given with the plaint, the learned District Judge felt that property was not properly described. It is not the case where any adjoining owner had made some encroachment and question was whether really there was any encroachment or not. Area under the structures said to be temples are well within the limits of the survey no. 433 and 434, which are claimed by the plaintiffs as their property on the basis of sale deed of 1939. In view of these circumstances, I find that there was no valid reason for the learned District Judge to remit the matter back to the trial Court for amendment and re-hearing of the suit. 6 Therefore, appeal is allowed. The impugned order is hereby set aside. Civil Appeal No.10 of 2007 is remanded back to the District Court, Thane with direction to hear the said appeal and dispose off the same on its own merits on the basis of oral and documentary evidence already led by the parties in the suit, within six months. 7 As the appeal itself is finally disposed off, civil application 6 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)