Bombay High Court
Apparao Madhavrao Gaddam vs Manohar Ramji Patil & Others on 30 June, 2016
Bench: T.V. Nalawade
1 SA 240 of 1989
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.240 of 1989
* Apparao Madhavrao Gaddam
Since deceased through his
legal representatives:
1) Dattatraya s/o Apparao Gaddam,
Since deceased through his
legal representatives:
1.1
Ganesh s/o Dattatraya Gaddam,
Age 50 years,
Occupation: Business,
R/o Shivaji nagar, Nanded.
Taluka and District Nanded.
1.2 Omprakash S/o. Dattatraya Gaddam,
Age 45 years,
Occupation: Business, R/o As above.
1.3 Nagnath S/o. Dattatraya Gaddam,
Age 42 years, Occupation: Business,
R/o As above.
1.4 Vijay s/o Dattatraya Gaddam,
Age 40 years, Occupation : Business.
R/o As above.
2) Anusaya w/o. Narayanrao Alkatwar,
Since deceased, through her
legal representatives:-
2-a) Narayan Venkoba Alkatwar,
Age 69 years,Occupation : Business.
2-b) Suryakant Narayan Alkatwar,
Age 48 years,Occupation: Business.
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2 SA 240 of 1989
2-c) Chandrakant Narayan Alkatwar,
Age 39 years, Occupation: Business.
All R/o Near Jyoti Talkies
Gokulnagar, Nanded.
2-d) Ashatai Jagdish Batalwar,
Age 45 years,
Occupation: Household,
R/o Jethewad Complex,
Bhagyanagar, Nanded.
2-e) Premila Yelappa Nartawar,
Age 42 years,
Occupation: Household,
R/o Bhokar, Taluka Bhokar,
District Nanded. .. Appellants.
Versus
1) Manohar s/o Ramji Patil,
Occupation : Business,
R/o Phulenagar, Nanded
District Nanded.
2) Nanded Cooperative Industrial
Estate Ltd., College Road,
Nanded
Through Chairman.
3) Municipal Council, Nanded
Through Chief Officer, Nanded. .. Respondents.
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Shri. R.R. Mantri, Advocate, for appellants.
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CORAM: T.V. NALAWADE, J.
DATE : 30 JUNE 2016
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3 SA 240 of 1989
JUDGMENT:
1) The appeal is filed to challenge the judgment
and decree of Regular Civil Appeal No.127/1986 which
was pending in the Court of the Additional District Judge,
Nanded. The appeal filed by original defendant No.2
against the judgment and decree of injunction given by
the Court of the Civil Judge, Junior Division, Nanded in
Regular Civil Suit No.111/1979 is allowed by the District
Court. The decree of injunction is set aside and the suit is
dismissed by the first appellate Court. Heard both the
sides.
2) In short, the facts leading to the institution of
the appeal can be stated as follows :--
3) The plaintiff is owner of a plot situated in
Nanded Cooperative Industrial Estate area. It is the case
of the plaintiff that plot of defendant No.2 is situated in
the same area and there is a road having width of 50 ft
between these two plots. It is contended that initially
there was only plot bearing No.100 but it was divided by
defendant No.1 into two portions and portion which was
4 SA 240 of 1989
given number 100/A was allotted to defendant No.2. It is
contended that there is dispute over the area of Plot
No.100/A. It is contended that defendant No.2 has started
making illegal construction of his building by presuming
that he is owner of area of 8740 square feet. It is
contended that the defendant No.2 has not obtained any
permission of local body for making construction over the
plot allotted to him and he has made encroachment over
the road situated between the plot of defendant No.2 and
the plot of the plaintiff of 30 feet in width. Thus the main
contention is about the alleged encroachment made by
defendant No.2 over the road kept in lay out plan of 50 ft
width. The plaintiff has no locus to challenge the allotment
of the plot made by defendant No.1 to defendant No.2 in
view of the nature of dispute.
4) Defendant No.1 did not contest the matter.
Defendant No.2 contested the matter by filing written
statement. He contended that he had obtained necessary
permission of construction and before the date of suit his
construction was completed and so relief of injunction
cannot be given. He denied the allegation that he has
5 SA 240 of 1989
made encroachment over the public road, the road kept in
lay out plan.
5) Defendant No.3, local body, filed written
statement. It also contended that, plaintiff has no right to
file such suit. It, however, contended that defendant No.2
was making construction illegally in breach of the terms
and conditions of permission and so defendant No.3 is
likely to take action against defendant No.2.
6) On the basis of the aforesaid pleadings, issues
were framed by the trial Court. The main issue is in
respect of the encroachment. Whether relief of injunction
could have been granted when the construction was
already completed can be kept aside for a moment to
ascertain as to whether the encroachment itself is proved.
7) The trial Court decreed the suit by holding that
there was evidence to prove the encroachment. Vague
direction was given to demolish the construction which
was on public road. District Court has set aside this
decision by holding that plaintiff has no locus standi. It is
further held that the encroachment is not proved.
6 SA 240 of 1989
8) This Court, other Hon'ble Judge, admitted the
appeal by observing that substantial questions of law can
be formulated on the basis of ground Nos.7,9,19,32,34
and 36. The grounds are as under :-
(7) Whether it was necessary for the appellant to give
his own statement instead of his Mukhtyar, Narayan
Alkatwar.
(9) Whether the Appellate Court carved out some
sentences from the statement of witnesses and gave
finding in respect of encroachment without considering
the whole evidence.
(19) Whether the Appellate Court is legally correct in
discarding the record produced by P.W. No.8, Assistant
Director, Town Planning on the ground that, it was
prepared by his predecessor, when it is official record
produced from proper custody.
(32) Whether the finding of the Appellate Court that the
appellant did not take objection for construction, is
correct and whether such a construction is valid, which
has been carried out when the injunction of the Court
was in existence.
(34) When the original Plot No.100/C was 12729.50 sq.
feet which was divided in Plot Nos.100/C and 100/A the
area of divided Plot No.100/C being 6900 for the
remaining Plot No.100/A cannot be more than 5800
square feet. Whether The Court below has failed to
consider in this respect the evidence of P.W. Asthikar and
the Architect Sham Deshpande.
(36) Whether the report of Architect Sham Deshpande
at Exhibit 45 that the plot of respondent is only 5800
square feet is not considered by the appellate Court and
the appellate Court has also not considered the map at
Exhibit 86 and the document at Exhibits 119, 147.
7 SA 240 of 1989
9) It is already observed that the dispute is mainly
in respect of so called encroachment made on public road,
the road shown to be kept in lay out plan. To prove that
such road was kept in lay out plan, witness Vilas Asturkar
(PW 7) is examined by the plaintiff. He is employee of
defendant No.1. In his evidence the lay out plan is proved
at Exhibit 87 and it shows that in the lay out plan the road
having width of 50 feet was left. Thus, there is sufficient
evidence to prove that there is public road having width of
50 feet as contended by the plaintiff.
10) It was necessary for the plaintiff to prove that
the defendant No.2 has made encroachment over the
aforesaid road portion to make construction of his
building. Most of the evidence is oral in nature. Only one
witness Riazuddin (PW 11) who was appointed as Court
Commissioner by the trial Court, has given evidence on so
called encroachment made by defendant No.2. It appears
that he gave evidence like examination-in-chief but in the
midst of cross-examination he stopped giving evidence by
giving lame excuses. Unfortunately the trial Court did not
take action against him though he was appointed as Court
8 SA 240 of 1989
Commissioner and he was employee of the Government
Department. In any case due to this circumstance
evidence of Riazuddin is of no use to the plaintiff to prove
the so called encroachment. Due to this circumstance, no
relief could have been given to the plaintiff.
11) Though there are aforesaid circumstances that
does not mean that local body has no power to take
appropriate action if it finds that defendant No.2 has
made encroachment over public road. It can take action
and the decision of the present matter, dismissal of the
suit filed by a resident of the area will not come in the way
of the local body. So, the points are answered accordingly
against the appellant and the appeal is dismissed.
Sd/-
(T.V. NALAWADE, J. )
rsl
