Bombay High Court
Bihari Singh S/O Bhagwan Singh ... vs Anil S/O Jiyalal Rai (Since ... on 11 August, 2021
Bench: S. M. Modak
3sa90.2018. 1/3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL APPLICATION (CAS) NO. 74/2021
IN SECOND APPEAL NO.90/2018
Bihari Singh s/o Bhagwan Singh Chouhan and another
Versus
Anil s/o Jiyalal Rai (since deceased) thr. L.Rs. and others.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Shri J.M. Gandhi, Advocate for Appellants.
Shri Amol G. Hunge, Advocate for Respondent Nos. 1-A to 1-C.
CORAM : S.M. MODAK, J.
DATE : 11/08/2021.
Heard learned Advocate for the respondent Nos. 1-A to
1-C/original plaintiff and learned Advocate for appellants/defendant
Nos. 1 and 2.
2. The plaintiffs' suit for removal of encroachment is
decreed by the trial Court. The defendants were directed to remove
encroachment i.e. unauthorized construction i.e. half portion on the
southern side of the plot. When the defendant Nos. 1 and 2 filed First
Appeal, they were not successful and judgment of the trial Court is
confirmed. They have come to this Court by way of Second Appeal.
This Court, as per the order dated 18/09/2019 has issued a notice by
framing three substantial questions of law.
3. Now, they (the contesting respondents) are coming with
grievance that the appellants have started with construction on the
suit plot. They have filed photograph wherein it is shown that certain
pits were dug. This Court has accepted the statement made by the
3sa90.2018. 2/3
learned Advocate for the appellants that they will not carry out any
construction till decision of this application. It was accepted on
11/02/2021.
4. The appellants by way of reply have tried to explain that
no doubt these pits were dug but they were dug in order to
strengthen the existing structure. It is also submitted that these pits
are now filled in. Photograph to that effect is shown on record.
5. If the situation shown in the photograph filed by the
appellants is seen, the contesting respondents do not say that apart
from that the appellants are carrying out further construction. So,
after going through the pleadings and photograph, this Court feels
that these pits were dug in order to strengthen the existing structure.
The learned Advocate for the appellant on taking instructions also
submitted that except that they will not carry out anymore
construction during pendency of this appeal. That statement is
accepted.
6. Shri J.M. Gandhi, learned Advocate for the appellants
submitted that even though southern portion from the plot was
directed to be removed, during the pendency of the suit as there was
no prohibitory injunction the appellants have completed the
construction and as on today there is ground plus one storey
structure. Learned Advocate for the contesting respondents submitted
that there is no first floor but there is only ground floor. At this
juncture this Court is not expressing any opinion about that.
7. In view of the explanation given for what purpose these
pits were dug and in view of the statement made to the effect that
3sa90.2018. 3/3
further constructions will not be carried out, I do not think that
further directions and reliefs are required.
In view of those observations, the application is disposed
of.
Second Appeal No. 90/2018
Matter be kept on 22/09/2021.
JUDGE
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