Saraswatibai Anantrao Patil And ... vs Gopal Namdeo Akalade And Another
2022 Latest Caselaw 5025 Bom

                                                             Second Appeal No.70/2021
                                              :: 1 ::


           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                   SECOND APPEAL NO.70 OF 2021 WITH
                   CIVIL APPLICATION NO.1547 OF 2021


 Smt. Saraswatibai Anantrao Patil
 and others                                                   ... APPELLANTS

          VERSUS

 Gopal Namdeo Akalade
 and another                                                  ... RESPONDENTS


                              .......
 Mr. D.S. Bagul, Advocate for appellants
                              .......


                                      CORAM :           R. G. AVACHAT, J.

                                      DATE :            6th JUNE, 2022.
 PER COURT :


                  Heard         Mr.     Bagul,          learned   counsel        for     the

 appellants.         This is original plaintiffs' Second Appeal.                       They

have been unsuccessful, first in their suit, being Regular Civil

Suit No.117/2002 for the relief of mandatory injunction for

removal of encroachment made by the respondents on their

land, specifically described in the plaint. They have also been

unsuccessful in the first appeal preferred against the

judgment and decree dismissing their suit.

Second Appeal No.70/2021 :: 2 ::

2. It was a suit for removal of encroachment.

Learned counsel for the appellants would submit that, the suit

property was given to the father of the plaintiffs on lease by

the Government. Sale of part of the said property was,

therefore, illegal. According to learned counsel, the suit

property has been specifically described in the plaint. The

revenue record thereof is in favour of the appellants/

plaintiffs. Witnesses were examined in proof of demolition of

part of the appellants/ plaintiffs' premises by the respondents

- defendants and making construction thereon. According to

learned counsel, a substantial question of law has thus been

involved in the appeal.

3. Considered the submissions advanced.

Admittedly, on one side of the suit property, property

belonging to the respondents - defendants exists. The suit

was filed for mandatory injunction for removal of

encroachment made by the respondents - defendants on the

suit property. Admittedly, neither before the trial Court nor

before the first appellate Court the appellants - plaintiffs

moved any application for appointment of an expert/ Surveyor

Second Appeal No.70/2021 :: 3 ::

for measurement of the suit property with a view to bring on

record dimensions of the alleged encroachment. Needless to

mention, appointment of a Surveyor to carry out

measurement of the suit property and properties adjoining

thereto is a must so as to make out a case of encroachment,

if any. The appellants - plaintiffs shall blame themselves for

having not urged for carrying out measurement of the suit

property so as to make out the case of encroachment. As

such, no substantial question of law is involved in the Second

Appeal. The appeal is, therefore, liable to be dismissed. The

same is dismissed. Consequently, Civil Application stands

dismissed.

( R. G. AVACHAT ) JUDGE

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