Bombay High Court
Uttamrao S/O Hanumant Deshmukh vs Datatray S/O Ganpatrao Wankhede ... on 25 July, 2016
Bench: Ravi K. Deshpande
1 sa512.02.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 512 OF 2002
Uttamrao Hanumant Deshmukh,
aged 70 yeaers, R/o. Ward No.7,
Nerpinglai, Tah. Morshi,
Distt. Amravati APPELLANT
...VERSUS...
1]
Dattatray Ganpatrao Wankhede,
aged about 52 years, R/o. Nerpinglai,
Tah. Morshi, Distt. Amravati.
2] Vijay Narayanrao Muley,
aged about 45 years, R/o. Nerpinglai,
Tah. Morshi, Distt. Amravati.
3] Gram Panchayat, Nerpingali,
Sarpanch, R/o. Nerpinglai,
Tah. Morshi, Distt. Amravati. RESPONDENTS
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Shri A.J.Gilda, counsel for appellant
Smt. S.W.Deshpande, counsel for Respondents
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CORAM: R. K. DESHPANDE, J.
th
DATE : 25
JULY, 2016 .
ORAL JUDGMENT
1] The trial Court passed a decree in Regular Civil
Appeal No. 105 of 1993, restraining the defendants
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permanently from causing any obstruction to the plaintiff for
construction of boundary wall as alleged in paragraph 7(1) of
the plaint. The defendant No.1 was directed to remove the
wooden stumps which he had erected in the plot of the
plaintiff as shown in the map at Exh.32. The map prepared
by the Surveyor at Exh.31 was treated as part and parcel of
the decree passed by the trial Court. The defendants
preferred Regular Civil Appeal No. 114 of 1995 and that has
been allowed by the lower appellate Court on 11.07.2002.
The suit filed by the plaintiff has been dismissed. Hence, the
plaintiff is before this Court in this second appeal.
2] On 21.09.2005, this Court admitted the second
appeal on the question No.4 framed in the memo of appeal,
which is reproduced below.
"Whether the learned District Judge was right in allow the
appellant to urge a ground, which was not raised in the
Memo of Appeal before the Lower Appellate Court, and
no leave was sought by the appellant, before the Court to
urge on the said ground at the time of final hearing? "
3] The question involved before the trial Court was
regarding title of the plaintiff over the suit property. The trial
Court held it in affirmative, whereas the appellate Court has
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recorded the finding that the plaintiff has failed to establish
that the defendant no.1 has encroached upon his portion of
the property by fixing pegs for tethering cattle.
4] With the assistance of the learned counsel for
the appellant, I have gone through the record and
proceedings, which includes the copy of plaint, written
statement and other evidence available on record. I find that
the plaintiff has failed to establish the boundaries of house
No. 205 (old) which corresponds to new house No. 1555 in
Ward No. 7 at Nerpinglai. I have seen the map Exh. 31 relied
upon by the trial Court. From the said map, I do not find the
boundaries of the house owned by the plaintiff. The plaintiff
applied to the Gram Panchayat for grant of permission to
construct compound wall, which has been granted with a
condition that the wall should be constructed by leaving
permanent road adjacent to the boundary of the property of
the defendant no.1. The plaintiff did not make an issue of
conditional permission granted by the Gram Panchayat as a
matter of dispute before the Courts below. In view of this, the
substantial question of law framed by this Court does not at
all arise in the present matter. The second appeal is
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dismissed. No order as to costs.
JUDGE
Rvjalit
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C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy
of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 28 July, 2016
