* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 294 OF 2008 Ranjana Devi Dhairyasinha Gaikwad & Ors. ..... Appellants. V/s. Ratnaprabha Gopalrao Gaikwad & Ors.. ....Respondents. ======== V.S.Gokhale, adv.for appellants. Mr.Nitesh Bhutekar h/for. Mr.Uday Warunjikar, adv.for respondents no.1 to 5. Coram: Smt.R.P.SondurBaldota, J. Dated: 20 th April, 2009. P.C. : 1. Heard counsels for both sides. 2. The Second Appeal arises out of the judgment and order dated 24th March, 2006 passed by the District Court, Baramati in Regular Civil Appeal No. 27 of 2004 which in turn arises from the judgment and decree dated 13th January, 2004 passed by the Civil Judge, Junior Division, Indapur, District- Pune in Regular Civil Appeal No. 45 of 2002. Notice before admission of the Second Appeal is served upon the respondents who are present to oppose the admission of the appeal. 3. The respondents to the appeal are the original plaintiffs. They filed the instant suit seeking a declaration that the decision of the Tahsildar dated 29th November, 1998...which was subsequently confirmed by the Collector in the appeal proceedings is illegal and liable to be quashed and for a declaration that the same is not binding on them. The respondents also sought permanent injunction to * 2 * restrain the appellants from creating any right over the property of the respondents. 4. The parties are relatives of each other. The respondents are owners of Gat No.425 situated in District- Pune. The appellants had filed proceedings before the Tahsildar under Section 50 of the Maharashtra Land Revenue Code, 1966 alleging that there was encroachment on the road by the respondents and requested for removal of the encroachment. That application was allowed and directions for removing of encroachment came to be given. The decision of the Tahsildar was upheld in the appeal proceedings. The respondents then filed the instant suit contending that the road alleged to have been encroached upon by them is not a public road, and therefore the order passed by the Tahsildar under Section 50 of the Maharashtra Land Revenue Code was without jurisdiction. The trial court dismissed the suit. However, the appeal court held that there is nothing to show that the road in question is a public road and there was no specific claim made by the appellants of easementary rights over the private road. 5. Mr.Gokhale, learned counsel for the appellants, submits that the very fact that the Tahsildar passed an order for removing the encroachment would mean that this road is a public road. This order of the Tahsildar is confirmed by the appellate authorities. Therefore, according to him, the decision of the appellate court is incorrect. He also submits that since the road is a public road, it was necessary for the respondents to join the government as a party defendant to the suit. 6. I have perused the order of the Tahsildar, the appeal court's order,the plaint and the written statement in the proceedings. It has nowhere been held in the orders of the revenue authorities relied upon, that the road is a public road. * 3 * Instead, what can be gathered from the orders is that the appellants had never contended that the road is a public road. What was contended was that, the road is a private road being utilised by the appellants and other villagers over a long period of time. The written statement of the appellants also does not specifically state that the road is a public road. 7. The second circumstance which will indicate that the road in question is not a public road, is the contention of the appellants themselves. In the written statement, it is contended that some settlement had been arrived at between the parties on 26th April, 2000, in which it was alleged to have been agreed that the appellants would be provided with a road admeasuring 12 feet towards the north of Gat No.425 and the appellant has complained that the respondents did not comply with the settlement arrived at between the parties. Had the road been a public road with the width of 30 feet, there could have been no compromise between the appellants and the respondents whereby the width of the road would be reduced to 12 feet. In these circumstances, the decision of the lower appellate court is a correct decision. Besides, there is no substantive question of law arising in the matter. Hence, the Second Appeal is dismissed in limine. [SMT.R.P.SONDURBALDOTA, J]