Bombay High Court
Pandurang S/O Narayan Vaidya vs Santosh S/O Balaji Porte on 14 October, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.78 OF 2015
Pandurang s/o Narayan Vaidya
Aged about 64 years,
Occ: Agriculturist,
R/o Umri, Tah. Hinganghat,
Dist. Wardha. ....... APPELLANT
...V E R S U S...
Santosh s/o Balaji Porte
Aged 49 years,
Occ: Agriculturist,
R/o Umri, Tah. Hinganghat,
Dist. Wardha. ....... RESPONDENT
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Shri G.G. Modak, Advocate for Appellant.
Shri Mahesh Rai, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th OCTOBER, 2016.
DATE: 14
ORAL JUDGMENT
1] In Regular Civil Suit No.29 of 2004 the trial court
passed a decree granting declaration that the defendant has no
right to carry out construction on 603 sq.ft. of land which is a part
and parcel of the suit property. The defendant is permanently
restrained from creating any obstruction in the use of the suit land
by the plaintiff. The trial court also passed a decree for mandatory
injunction directing the defendant to demolish the construction
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made over the suit property.
2] This decree passed on 19.04.2008 was the
subject-matter of challenge in Regular Civil Appeal No.37 of 2009
by the original defendant. The lower Appellate Court allowed the
appeal on 08.08.2014 and dismissed the suit by setting aside the
judgment and decree passed by the trial court. The original
plaintiff is therefore, before this Court in this second appeal.
3] On 27.07.2016 this Court passed an order as under:
The trial Court passed a decree for removal of
encroachment over 603 sq.ft. of land belonging to the
plaintiff and further passed a decree of permanently
restraining the defendant from interfering with the
possession of the plaintiff over the suit property.
The lower Appellate Court has reversed the decree
passed by the trial Court and the suit has been
dismissed. The original plaintiff is, therefore, before this
Court in the second appeal.
The question involved before the Courts below
was whether the plaintiff has established the
encroachment by the defendant over 603 sq.ft. of land
belonging by the defendant. The trial Court records the
finding that such encroachment has been proved on the
basis of the map at Exhibit 57 and the report of T.I.L.R.
examined by the plaintiff. The lower Appellate Court
reverses the finding of the trial Court and holds that the
T.I.L.R. P.W.2 - Gaurishankar did not measure the
distance between the two traverse marks, and therefore,
it cannot be said that the defendant has made any
encroachment over the suit field.
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Though, the defendant appeared in the matter
before the trial Court, written statement was not filed.
The trial Court, therefore, proceeded further and after
passing an order of no written statement, the plaintiff
examined the T.I.L.R., who entered the witness box
apart from himself. The defendant did not
cross-examine the witnesses. Prima facie there is
nothing on record to show that the land belonging to
the defendant is adjacent to the suit land.
In view of above, Admit on the following
substantial question of law:
Whether the lower Appellate Court was right in
igreversing the finding of fact recorded by the trial
Court on the aspect of encroachment over 603
sq.ft. of land belonging to the plaintiff?
Shri Mahesh Rai, the learned counsel for the
respondent waives service of notice.
Put up for final hearing on 01.09.2016.
Call for R & P.
4] Heard finally by consent of the learned counsels
appearing for the parties.
5] The plaintiff entered the witness box and examined
the T.I.L.R. P.W.2-Gaurishankar. The lower Appellate Court
reversed the finding recorded by the trial court and holds that
T.I.L.R. P.W.2-Gaurishankar did not measure the distance between
the two traverse marks, and therefore, it cannot be said that the
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defendant has made any encroachment over the suit field.
The lower Appellate Court records such finding in ignorance of the
fact that the defendant neither filed the written statement nor
participated in the proceedings, and if there was nothing on record
to show that the land belonging to the defendant is adjacent to the
suit land, there was no question of carrying out measurement of
the land belonging to the defendant and the question as to
measurement of the distance between two traverse marks had lost
its relevance.
6] The learned counsel appearing for the parties agree
on the question of remand of the matter back to the trial court so
as to permit the defendant to file written statement and participate
in the proceedings. Shri Modak however, submits that the remand
should be on certain terms for failing to file written statement
within stipulated period. Obviously, the entire complexion of the
matter shall change and the court will have to decide the suit
afresh.
7] In the result, the second appeal is allowed.
The judgment and order dated 08.08.2014 passed by the trial
court in Regular Civil Appeal No.37 of 2008 is quashed and set
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aside along with the decision of the trial court rendered
on 19.04.2008 in Regular Civil Suit No.29 of 2004. The matter is
remitted back to the trial court to permit the defendant to file a
written statement upon payment of costs of Rs.5000/- to the
appellant/plaintiff within a period of two weeks from the date of
first appearance of the parties before the trial court. Upon such
payment, the trial court shall permit filing of the written statement
and the trial shall be conducted afresh by framing appropriate
issues. No order as to costs.
8] It is made clear that the plaintiff shall be at liberty to
file fresh application for grant of injunction before the trial court
and the party shall maintain status quo till the trial court shall
decide the application for grant of injunction.
JUDGE
NSN
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
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