Shri. Jaideo S/O. Bajirao ... vs Shri. Bapurao S/O. Ramchandra ...
2022 Latest Caselaw 5364 Bom

                                    16-SA-47.2016.odt
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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR.

                      SECOND APPEAL NO. 47 OF 2016
Shri Jaideo s/o Bajirao Gaigavali ....V/s... Shri Bapurao s/o Ramchandra Gaikwad and
others.

Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions                  Court's or Judge's orders.
and Registrar's Orders.

            Shri D.B. Walthare, Advocate for Appellant.
            Shri K.P. Mahalle, Advocate for Respondent Nos. 1 to 3.
            Shri N.R.Patil, AGP for Respondent No.4.

            CORAM: S.M. MODAK, J.

DATE : 14/06/2022.

1. Heard both the learned Advocates on the point of admission and both of them have apprised me about judgment passed by the learned Trial Court and by the First Appellate Court. Though defendant No.4 appeared before the learned Trial Court, he has not filed a written statement.

2. The learned Trial Court decreed the suit on the basis of evidence given by the plaintiffs. The appeal filed by defendant No.4 is also dismissed. Before the First Appellate Court, the plaintiffs additionally relied upon one undertaking given by defendant No.4 to remove the encroachment, when the Gram Panchayat / Ori.Defendant No.3 has initiated action for the removal of the encroachment.

3. According to the appellant, this undertaking was obtained by applying pressure, whereas the plaintiffs contend that this issue was not raised before the First Appellate Court.

16-SA-47.2016.odt

Admittedly, this undertaking was not filed before the learned Trial Court but it is alleged to have been given after decision by the learned Trial Court. The First Appellate Court has relied upon this undertaking.

4. There are two orders passed by this Court, first on 25/01/2017 and second on 30/11/2018. As per the first order, the Collector has given a report, opining that there is no encroachment. Whereas, as per the second order, again the Collector with the assistance of Cadastral Surveyor has opined that there is no city survey and hence it is difficult to opine about encroachment. While passing the order dated 30/11/2018, this Court has kept the option of remand open.

5. Today, learned advocate for the plaintiffs/ respondents seeks time to take instructions on this issue.

6. Matter be kept on 21/06/2022.

JUDGE

rkn

Signed By:RAJESH K NANDURKAR

Signing Date:16.06.2022 15:32