Parubai Sukhdev Raut And Another vs Ankush Dattoba Yadav And Others
2023 Latest Caselaw 12930 Bom

Bombay High Court

Parubai Sukhdev Raut And Another vs Ankush Dattoba Yadav And Others on 18 December, 2023

Author: S.G. Mehare

Bench: S.G. Mehare

2023:BHC-AUG:26648
                                                                           16-sa-459-2019.odt
                                                   (1)


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  SECOND APPEAL NO. 459 OF 2019
                                               WITH
                                CIVIL APPLICATION NO. 9145 OF 2019
                                          IN SA/459/2019
                                 Parubai Sukhdev Raut And Another
                                              VERSUS
                                  Ankush Dattoba Yadav And Others
                                                 ...
                               Advocate for Appellants : Mr. K.R. Doke
                          Advocate for Respondent Nos.1 to 3 : Mr. S.R. Kedar
                                                 ...
                                                  CORAM : S.G. MEHARE, J.

DATED : DECEMBER 18, 2023

PER COURT:-

1. Heard learned counsel for the appellants and learned

counsel for the respondents.

2. The appellants were the defendants against whom the

suit for removal of encroachment was filed. The suit was of the year

2005. The suit was dismissed for the reason that there was no proper

measurement of the encroachment. The Appellate Court remitted the

suit to the Trial Court with a direction to appoint Cadastral surveyor

as a Court Commissioner. The Cadastral surveyor measured the land

following the due procedure of law. He proved the accuracy of the

map he prepared. However, the present defendants did not cross-

examine the plaintiff and his witnesses and remained absent. The

Trial Court appreciating the evidence, decreed the suit. The 16-sa-459-2019.odt

defendants preferred the appeal contending that no opportunity was

granted to them to cross-examine the plaintiff and his witnesses as

well as leading their evidence. This was the substantial ground before

the First Appellate Court. The First Appellate Court has recorded the

finding that there were no substantial grounds for the

appellants/defendants to remain absent and no immediate steps were

taken to recall the witnesses. The First Appellate Court did not satisfy

that the defendants could not cross-examine the witnesses due to the

reason beyond their control. It is also transpired that the lawyer also

did not appear in the Court and cross-examined the witnesses.

3. Now, the learned counsel for the appellants submits that

by civil application they have produced the medical certificate that

restrained them from appearing in the Court. For the first time, this

ground is raised. This was not the ground raised before the First

Appellate Court. Hence, such ground cannot be considered for the

first time in second appeal.

4. Besides the absence of the defendants for cross-

examining the material, there is no substantial ground to be

considered for admission of the appeal.

5. After having gone through the impugned judgment and

decree, the Court did not find any substantial questions of law

involved in the appeal. Hence, the appeal stands dismissed at the

admission stage.

16-sa-459-2019.odt

6. Civil Application No. 9145 of 2019 stands disposed of.

(S.G. MEHARE, J.)

Mujaheed//

Signed by: Syed Mujaheed Naseer Designation: PA To Honourable Judge Date: 19/12/2023 11:01:37