2010 Supreme(Bom) 59

In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE F.M. REIS
Smt. Sarita W/o Narendra Shahu & Others
Versus
Public Cooperative Housing Society Ltd.
SECOND APPEAL NO.331 OF 2009 WITH SECOND APPEAL NO.330 OF
2009
Decided on : 13-01-2010

Headnote:Civil Procedure Code, 1908 - Section 10 - Suit for removal of encroachments - Decreed by trial Court - Appeal against - Dismissed by First Appellate Court - Second appeal against - Held - Both Courts below arrived at concurrent findings of fact based on oral and documentary evidence on record that encroachment done by appellants in property of respondents - Respondents duly established their title to property - Respondents entitled to possession of portion of property encroached by appellants - No infirmity in findings of Courts below - No substantial question of law involved in second appeal - Appeal summarily dismissed. - Dealing with the second contention of the learned counsel for the appellants, Court finds that while appreciating the evidence on record, the District Judge has rightly come to the conclusion that on perusal of the two maps namely Exhs. 88 and 89 it clearly show the exact location of the houses of the appellants which according to respondents are encroachments over the property. The District Judge has further held that said map at Exh. 89 was prepared in the presence of some of the appellants. The appellants never raised any dispute to the correctness of the said two maps. The map prepared by the City Surveyor at Exh. 89 was prepared in the presence of some of the appellants and no objection to that effect was taken by them. The encroachment was shown to be 8376.63 Sq. Ft. Apart from this the Courts below have also found that the correctness of the said maps were not disputed during the cross-examination of the witnesses of the respondents. There is no dispute that the said two maps are depicting the properties of the respondents as well as the properties occupied by the appellants. The property of the respondent is survey No. 65/2 and the property occupied by the appellants is 87/1-2-3. The property occupied by the appellants is adjoining the property of the respondents. The Survey demarcating line between said two properties have not been disputed by the appellants. There is no boundary dispute between the property of the respondents and the property occupied by the appellants. On the backdrop of these admitted facts, it cannot be said that the encroachment as claimed by the respondents has not been established. The Counsel for the respondents states that the respondents have no claim to any portion of the property Survey No. 87/1-2-3. He further submits that the respondents are not interested in removing any encroachment if at all done by the appellants in the Survey No. 87/1-2-3. The respondents have restricted themselves to the property belonging to them under Survey No. 65/2 at Nagpur. The counsel for the appellants contends that their structures are in the property Survey No. 87/1, 2, 3 and that the appellants have not encroached in the property of the respondents Survey No. 65/2. But however no evidence has been adduced by the appellants that the structures are in the property Survey No. 87/1, 2, 3 or in the slum area. In view of the above and considering the encroachment done by the appellants is duly established on the basis of material on record, both the Courts below have given a concurrent findings that there was an encroachment which is done by the appellants in the property of the respondents Survey No. 65/2. The Counsel for the appellants is not justified in submitting that the respondents have failed to establish the encroachment in the property Survey No. 65/2. The appellants have not shown any perversity in the findings of the two Courts below that there was encroachment done by the appellants in the property of the respondents Survey No. 65/2. In view of the above, the contention of the Counsel for the appellants that there is no material to establish the encroachment does not arise at all. No substantial question of law to that effect arise in the present appeal.

       With regard to the third contention raised by the Counsel for the appellants, it is admitted that the property Survey No. 81/1-2-3 has been notified under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act. The respondents are not claiming any portion in the property Survey No. 87/1-2-3 and as such the property Survey No. 87/1-2-3 is not the subject matter of the suit. Consequently, the substantial question of suit being barred under the provisions of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act does not arise at all. Consequently, the third contention of the Counsel for the appellants d eserves to be rejected. No other contentions have been raised by the Counsel for the appellants.

       In view of the above, having heard the Counsel for the parties and on perusal of the records, Court finds that both the Courts below have arrived at concurrent findings of fact based on oral and documentary evidence on record that there is an encroachment done by the appellants in the property of the respondents. The respondents have duly established their title to the property Survey under No. 65/2 and as such the respondents are entitled to the possession of the portion of the property encroached by the appellants in the property Survey under No. 65/2. The Counsel for the appellants could not point out any infirmity in the findings of the Courts below.

       There is no substantial question of law which arises in the present appeal. As such the above appeals are summarily dismissed.