Bhimraj Gyanba Dhumal And Ors vs Sulochanabai Laxman Shevate And ...
2021 Latest Caselaw 14029 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                        SECOND APPEAL NO.501 OF 2013
                                     WITH CA/9595/2013

                            BHIMRAJ S/O GYANBA DHUMAL
                                   AND OTHERS

                                         VERSUS

              SAU. SULOCHANABAI LAXMAN SHEVATE
                            AND OTHERS
                                  .....
 Advocate for Appellants : Mr. A. D. Sonkawade h/f Mr. K. B. Jadhav
          Advocate for Respondent No.1 : Mr. V. M. Mane
                                  .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    29-09-2021.

ORDER :

1. Present appeal has been filed by original defendants to challenge

the concurrent findings and decree.

2. Present respondents/original plaintiffs had filed Regular Civil Suit

No.148 of 2002 before Civil Judge, Junior Division, Kopargaon District

Ahmednagar, for permanent injunction. The said suit came to be

decreed on 27-04-2007. Present appellants/original defendants

challenged the said Judgment and decree before District Court,

Kopargaon by filing Regular Civil Appeal No.22 of 2007. The said

appeal was heard by learned District Judge-1, Kopargaon and

dismissed on 26-09-2012. Hence, this second appeal.

2 SA 501-2013

3. Heard learned Advocate Mr. A. D. Sonkawade holding for Mr.

K. B. Jadhav for appellants and learned Advocate Mr. V. M. Mane for

respondent No.1.

4. It has been vehemently submitted on behalf of appellants that

both the Courts below have not appreciated the evidence and law

points properly. The Judgment of the Lower Appellate Court does

not confirm with requirements of Order 41 Rule 31 of the Code of

Civil Procedure. The points for determination have not been framed

properly and not discussed them at all. The report of Court

Commissioner Exhibit 48 in Regular Civil Suit No.525 of 2002 has

also been considered and it is observed that since only 8 feet road is

seen at the site, that report is disclosing encroachment to the extent

of 6 feet by present defendants. Both the Courts failed to consider

that plaintiffs had not proved the destruction of Bandh (boundary) as

alleged. It could not have been a case for grant of injunction.

Further, both Courts failed to consider that plaintiff No.1 had sold

the land to plaintiff No.2 and, therefore, had no interest left in the

suit land. The suit property was very much in existence, there was

no cause of action for the plaintiffs to file suit. Regular Civil Suit

No.525 of 2002 was filed by present appellants against adjoining

3 SA 501-2013

landholders. It was decreed. However, in order to give

counterblast, present suit was filed. Plaintiffs had not come with

clean hands to seek equitable relief. Substantial questions of law

arise in this case to admit the second appeal.

5. Reliance has been placed on following authorities by learned

Advocate for the appellants : -

a) Santosh Hazari vs. Purushottam Tiwari (Deceased) By LRs., reported in (2001) 3 Supreme Court Cases 179,

b) Malluru Mallappa (Dead) through Legal Representatives vs. Kuruvathapap and Others, reported in (2020) 4 Supreme Court Cases 313,

c) Kayalulla Parambath Moidu Haji vs. Namboodiyil Vinodan, reported in 2021 SCC OnLine 675,

d) Bento Antonio Gomes alias Antonio Bento Gomes vs. Rosario Salvador Carneiro and others, reported in 2014 (4) Mh.L.J. 366,

e) Gurunath Manohar Pavaskar and Others vs. Nagesh Siddappa Navalgund and Others, reported in (2007) 13 Supreme Court Cases 565.

6. Per contra, learned Advocate for respondent relied on the

reasons given by both the Courts below.

7. It is submitted that both the Courts below have appreciated

4 SA 501-2013

the evidence properly and have also considered the law points

involved. No substantial questions of law arise for determination.

There is compliance of Order 41 Rule 31 of the Code of Civil

Procedure. The learned First Appellate Court has discussed all the

points which were raised by the present appellants.

8. It can be seen from the record that there is no much dispute

about fact that since the date of purchase of land bearing Gut

No.46/1A, is in possession of plaintiffs. That means the ownership

and possession of plaintiffs over Gut No.46/1A is admitted to the

defendants. It is also not in dispute that defendants have purchased

road from the inner side of South-North bandh towards East of land

Survey No.41/2B on 28-04-1987. It appears that there is common

bandh towards their East and towards West of plaintiffs' land. It had

also come on record that defendants had brought construction

material at the bandh/road site. According to defendants they were

not encroaching.

9. Defendants had filed Regular Civil Suit No.525 of 2002 on 19-

11-2002 for injunction against on Thakoba Sapkal. It was alleged by

defendants that Thakoba was trying to destroy road by taking crops

on road, and was obstructing the vehicles using defendant's road.

                                           5                                 SA 501-2013



There was Court Commissioner appointed in that suit.                       He had

submitted report.          The copy of the report is filed in this case and

present defendants/appellants had no objection to read that report

in this case. Defendants admitted it in cross-examination. Now

appellants cannot raise objection for reading that report in this case.

The said Court Commissioner had noted the width of road was 8' and

not 14' as contended by defendants. It was found that there was

Soyabean crop and Siphon on the road of 6'. thus, defendants had

failed to show that the road in its position as it is as in the past.

10. As per the boundaries of the lands, there ought to have been

road towards the Western bandh of plaintiffs. The said road was

found to be 8', when it ought to have been 14' after the bandh. It

was also noticed in report of Court Commissioner in Regular Civil

Suit No.525 of 2002 that there was construction material on the said

road. Learned Lower Court has inferred that that material would

have been brought for constructing road. It was tried to be

submitted on behalf of defendants that repairs could be carried out

by defendants for maintenance of road. It had also come on record

that road area/land was not measured by defendants immediately

after purchase. Now defendants cannot contend for the first time in

6 SA 501-2013

second appeal that lands ought to have been measured. The

decisions on the point of measurement relied by appellant are not

applicable here.

11. The Judgment of learned First Appellate Court complies with

requirement of Order 41 Rule 31 of the Code of Civil Procedure as

contemplated in Santosh Hazari (Supra). Though points may not

have been framed but discussion has been made, therefore on that

count no substantial question of law is arising.

12. Both the Courts below have considered the facts and evidence

properly. The law points involved are answered legally. The

findings arrived at by them are not perverse, hence this Court

cannot take the task of reassessment of the same in detail. No

substantial questions of law as contemplated under Section 100 of

the Code of Civil Procedure are arising in this case, requiring

admission of second appeal. Hence, second appeal stands

dismissed. Pending civil application stands disposed of.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-