Bombay High Court
Sitaram S/O. Bijaram Garghate vs Mahadeo S/O. Vithoba Tiple & 4 ... on 7 July, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.308 OF 2001
Sitaram s/o Bijaram Garghate,
Aged about 56 years,
Occ: Agriculture and service,
Resident of and post Madheli,
Tah. Warora, Dist. Chandrapur. ....... APPELLANT
...V E R S U S...
1] Mahadeo s/o Vithoba Tiple
(since dead) through LRs.
LRs of R.No.1 1A] Smt. Sonabai wd/o Mahadeo Tiple
brought on Aged about 60 years, Occ: Household.
record vide
Court's order
dtd. 23.01.08. 1B] Keshav s/o Mahadeo Tiple
Aged about 48 years, Occ: Agri.
1C] Purushottam s/o Mahadeo Tiple,
Aged about 42 yrs., Occ: Business.
1D] Smt. Pushpa wd/o Namdeo Tiple,
Aged about 45 years, Occ: Tailoring.
1E] Ku. Dipika d/o Namdeo Tiple,
Aged about 14 years, Occ: Student.
1F] Ku. Smita d/o Namdeo Tiple,
Aged about 12 years minor student.
1G] Prakash s/o Namdeo Tiple,
Aged about 10 years, Occ: Student.
Nos. E, F, G minors through their guardian
natural mother Smt. Pushpa (Respt. No.1-D).
1H] Deorao s/o Mahadeo Tiple
Aged about 39 years, Occ: Business.
1A to 1H All R/o At and Post Madheli,
Tah. Warora, Dist. Chandrapur.
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1I] Smt. Nanebai w/o Mahadeo Ghavghave
Aged about 60 years, Occ: Household,
R/o At & Post Waldhur, Tah. Hinganghat,
Dist. Wardha.
1J] Smt. Janabai w/o Bhaurao Gujarkar
Aged about 50 years, Occ: Household,
R/o At & post Ajansara, Tah. Hinganghat,
Dist. Wardha.
2] Nathu s/o Vithoba Mohare,
Aged about 60 years,
Occ: Cultivation.
Appeal is 3] Smt. Subhadrabai wd/o Motiram Hatwar,
abated against Aged about 70 years, Occ: Household.
R-3 and
dismissed
against R-5 vide 4] Bhaskar s/o Motiram Hatwar,
R (J) order dt. Aged about 60 years, Occ: Cultivation.
30/4/15.
5] Laxman s/o Kisan Udhar,
Aged about 60 years, Occ: Cultivation.
All residents of and Post Madheli,
Tah. Warora, Dist. Chandrapur. ....... RESPONDENTS
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Shri S.P. Palshikar, Advocate for Appellant.
Shri M.P. Khajanchi, Advocate for Respondent Nos.2 & 3.
----------------------------------------------------------------------------------------------------
CORAM: R.K. DESHPANDE, J.
th JULY, 2016.
DATE: 7
ORAL JUDGMENT
1] The trial Court passed a decree on 23.08.1993 in Regular
Civil Suit No.33 of 1991 directing removal of encroachment to the extent
of 0.05.50 R out of Survey No.35 of village Madheli, specified in
paragraph 6 of plaint and also in the map shown in the red colour.
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The lower Appellate Court has reversed this decree in Regular Civil
Appeal No.134 of 1993 on 30.04.2001 and the suit is dismissed.
Hence the original plaintiff is before this Court.
2] On 01.03.2004, this Court admitted the second appeal on
the substantial questions of law raised in ground Nos.2 and 3 of the
memo of appeal, which are reproduced below:
igThat the learned Lower Appellate Court should have
seen that the appeal preferred by only two defendants i.e.
defendant no.1 and 2 while the defendants 3 and 4 did not
prefer an appeal. The learned Trial Court decreed the suit
jointly against all the four defendants. The appeal preferred by
defendants 1 and 2 only before the District Judge, Chandrapur
was not maintainable. That the law laid down in A.I.R. 1976
S.C. 634 (Koksingh .. V/S.. Deokabai) has not application to
the facts of the case.
3. That the provision of Order 41 Rule 33 of C.P.C. has no
application to the facts and circumstances of the case.
3] The factual position available on record is that the trial
Court relied upon the report of the government measurer at Exhibit 31 to
hold that the encroachment to the extent of 0.05.50 R is established.
The measurer was not examined. Undisputedly, it was not an
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appointment of Court Commissioner under Order 26, Rule 9 of the Code
of Civil Procedure. The lower Appellate Court has recorded the finding
that the measurement was carried out in the absence of the defendants.
4] Be that as it may, the lower Appellate Court holds in
paragraph 11 of its judgment as under:
11. igAs to point No. 3:-
From the evidence it can be seen that the evidence of
measurer cannot be relied upon as there are material
infirmities in his evidence. Apart from this, as pointed out
earlier, the plaintiff has joined four defendants in a single suit.
All these four defendants owned different lands and they have
separately encroached upon the plaintiff's land as alleged by
the plaintiff. The Order I Rule 1 of Civil Procedure Code
delineates those cases in which more than person can be joined
as plaintiffs. Here in the present case, no circumstances
mentioned in Order I Rule 1 exist giving rise to a common
cause of action against all defendants. Hence the plaintiff
should have brought separate suit against defendants 1 to 4.
Apart from this, as observed earlier the measurer has also not
shown specific area encroached upon by each defendant.
Looking to this position, it seems necessary to set aside the
judgment and decree passed by the Trial Court.
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It is thus, apparent that the finding of the lower Appellate Court is that
there is lack of pleading regarding extent of encroachment by each of the
defendants out of four defendants in the suit. This finding is not
challenged, and therefore, no substantial question of law arises in the
second appeal. The second appeal is dismissed.
ig JUDGE
NSN
