1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. Second Appeal No. 422 of 2007 (Mohd. Kausar Mohd. Shafi Versus Syed Hidayat Syed Inayat) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's Orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Mardikar, counsel for the appellant. CORAM : Smt. Vasanti A. Naik, J. DATE : 7 th July, 2008 Heard the learned counsel for the appellant. The appellant is the original plaintiff. A suit was filed by the plaintiff for a declaration that the defendant had encroached upon the government land in between the Public Health Center and Akola-Mangrulpir road thereby causing obstruction to the plaintiff to approach the public water tank and the tap which was situated in the public health center in rural hospital. It was the case of the plaintiff that the water tap and the tank were installed on plot no.1412 on which the public health center was located so as to provide water facilities to the residents of Khadakpur. Since the 2 defendant had erected a fencing and closed the open space on the disputed land, the plaintiff filed the suit seeking the aforesaid declaration and permanent injunction. The defendant denied the claim of the plaintiff and pleaded that he was the owner of plot no.1543 on which he had made the construction and had also erected a fencing. He denied that he had encroached on the land of the government. It was then pleaded by the defendant that the well had dried out and the plaintiff had yet another way to approach to the water tank and the tap situated in Nazul Plot no.1412 where the public health center was located. On the aforesaid pleadings, the defendants sought the dismissal of the suit. The trial Court held, on a proper appreciation of the evidence on record that the plaintiff did not have any locus standi to file the suit. The Court held that the plaintiff failed to prove that the thorny fencing erected by the defendant was on government land and was obstructing the right of way of the plaintiff to the water tank and tap as 3 pleaded by the plaintiff. The Court, therefore, dismissed the suit filed by the plaintiff. In an appeal filed by the plaintiff against the judgment passed by the trial Court, all the other findings recorded by the trial Court were confirmed by the first appellate Court except the finding about the maintainability of the suit. The first appellate Court held that the plaintiff's suit was maintainable. The Court, however, confirmed the other findings recorded by the trial Court to hold that the plaintiff had failed to prove that the defendant had encroached upon the property of the government or had caused obstruction to the plaintiff in approaching the water tank and tap. The first appellate Court also held that the plaintiff had yet another way for approaching the water tank and tap on the government land. It is submitted on behalf of the appellant that the Court failed to appreciate the evidence in the proper perspective. It is submitted on behalf of the appellant that the commissioner's report ought not have been 4 discarded on the ground that the report was drawn without perusing the Tipan Utara. It is then submitted on behalf of the appellants that some of the complaints made by the residents of the locality were not considered by the first appellate Court while confirming the findings recorded by the trial Court. I have perused both the judgments in detail. Both the Courts have concurrently held that the plaintiffs had failed to prove that the defendants had encroached on the government land and as a result of the fencing erected by the defendant, the plaintiff was obstructed from approaching the water tank and tap. Both the Courts held that the water tank and tap were not in use at the relevant time. The Courts also held that the plaintiff had yet another way to approach the water tank and tap. The first appellate Court rightly rejected the commissioner's report in view of the vital admissions in the cross-examination of the commissioner which showed that the map was drawn in the absence of Tipan Utara. The Courts have also referred to the complaints 5 filed by the neighbours and discarded the same as there was absence of cogent evidence on record to show that the defendants had erected the fencing on government land and that the plaintiff's right to approach the water tank and tap was obstructed. Since the findings recorded by both the Courts are pure findings of facts, the second appeal is liable to be dismissed as no substantial question of law arises for consideration. The second appeal is, therefore, dismissed with no order as to costs. JUDGE APTE