1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Second Appeal No.806 Of 2008 With Civil Application No.8675 Of 2008 Suresh S/o Onkar Gavankar. ... Appellant. Versus Manik S/o Gangaram Muley. ... Respondent. -------- Shri. S.S. Nirkhi, Advocate for the appellant. Shri. B.S. Kudale, Advocate for respondent. -------- CORAM: R.M. BORDE, J. DATE: 24th FEBRUARY 2010 PER COURT : 1) This is an appeal by the original defendant raising exception to the concurrent judgments recorded by the Courts below. 2) Considering the contentions raised by the plaintiff in his plaint, the trial Court restrained the defendant permanently from raising any construction over the suit 2 premises towards east-south corner of the house of the plaintiff. The trial Court has also issued mandatory injunction directing defendant to remove the encroachment alleged to have been committed by him to the extent of 5 ft portion occupied out of the suit lane. In the event of failure by the defendant to remove the encroachment the Municipal Council is directed to remove the same at the cost of the defendant. 3) The allegation of the plaintiff is that the defendant has encroached upon an area occupied by the common lane situate between both houses i.e. the house belonging to the plaintiff and the house of the defendant. 4) I have perused the judgments recorded by the Courts below. The learned counsel appearing for the respondent has also brought 3 to my notice the deposition of the defendant wherein he has categorically admitted that the construction raised by the defendant is occupying area of 30 ft x 30 ft. On perusal of the sale deed executed in favour of the defendant by his predecessor-in-title it transpires that, he is a purchaser of an area admeasuring 25 ft. x 20 ft. Thus, the defendant has raised construction over the area in excess of his entitlement 5) It is contended by the counsel appearing for the appellant that there is a deemed permission in respect of raising of construction in his favour and suit presented by him against the local authority has been decreed by the trial Court being Regular Civil Suit No.174 of 1994 wherein the local authority is permanently restrained from obstructing the peaceful possession of the defendant over the suit premises and from 4 demolishing the workshop shed belonging to the defendant (plaintiff in RCS 174/1994). The plaintiff herein was not a party to the said suit as such, the decree passed in the earlier suit between the defendant herein and the local authority does not have binding effect on the plaintiff. It is established from the evidence led before the Court that, the defendant has raised construction over an excess area which fact has been admitted by him before the Court. In this view of the matter I do not find that the Courts below have committed any error in granting decree against the defendant. No substantial question of law arises for considering of the appeal. 6) The second appeal is dismissed. Civil Application No.8675 of 2008 stands disposed of. (R.M. BORDE, J.) rsl/ sa.806.08