1 S.A.No.285/08 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.285 OF 2008. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 09.12.2010. 1. This is defendants' Second Appeal. The present Respondents/original plaintiffs had filed a suit for mandatory injunction i.e. removal of encroachment and possession. The trial Court decreed the suit. The defendants preferred an appeal. The appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. The defendants have approached this Court in the present Second Appeal. 2. Mrs.Jadhav, learned counsel for the appellants strenuously contended that the 2 S.A.No.285/08 plaintiffs could not prove the ownership of the suit property though the sale deed is there but the same is not in respect of the property where the construction has been made by the present appellants. According to the learned counsel, both the Courts below have not properly appreciated the evidence on record and the boundaries of the property so also the situation. The plaintiffs have failed to establish the identity of the property. In such circumstances, they are not entitled for the relief. Mrs.Jadhav, learned counsel further contended that the shopping complex is already constructed. Before starting the construction of the shopping complex, the appellants had called for the objections as none had raised any objection, thereafter the construction of the shopping complex was started. The plaintiffs have also acquiesced in their right. In such circumstances, the plaintiffs are not entitled for any relief. 3. Mr.Warma, learned counsel for the Respondents contended that it has been proved by preponderance of probabilities that the 3 S.A.No.285/08 plaintiffs are the owners of the suit property. Even the present appellants had applied for measurement of Gat Nos.193, 194 and 195. Accordingly, the measurement was carried out. The surveyor was also examined and he has specifically stated that the construction work has been carried out in land Gat No.195. 4. It is not disputed that the plaintiffs are the owners of land Gat No.195. In such circumstances, when it has been established that the construction has been made on the land of the plaintiff then the plaintiffs are entitled for the relief. The question of acquiescence does not arise as immediately after the construction commenced, the plaintiffs had filed the suit and prior to the same, the notice was also issued to the appellants. 5. In the result, the Second Appeal being sans substantial question of law, is dismissed. 6. It is a fact that the shops have been constructed and the persons are carrying on their business in the said shops. Taking into consideration this aspect of the matter the decree 4 S.A.No.285/08 for mandatory injunction and possession shall not be executed for six (6) months from today, so as to enable the appellants Gram Panchayat to take necessary steps if they are so advised. 7. The Second Appeal is accordingly dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.09.12.2010. asp/office/sa285.08 5 S.A.No.285/08