The main legal point established is that in property disputes, the party seeking an interim injunction must provide sufficient evidence to prove the alleged encroachment.

1. Heard Mr. Patil, learned counsel for the Petitioner.

2. By this Petition, filed under Article 227 of the Constitution of India, the Petitioner is challenging the concurrent finding arrived at by the Court of 3rd Joint Civil Judge, Junior Division, Kolhapur, vide his order below “Exhibit-5” dated 6th July 2017 passed in Regular Civil Suit No.438 of 2017, which is confirmed by the Court of District Judge-7, Kolhapur, vide its order dated 19th September 2017 passed in Miscellaneous Civil Appeal No.192 of 2017.

3. By the Trial Court's order dated 6th July 2017, the application filed by the Petitioner for interim injunction restraining the Respondent from carrying out construction over the alleged encroached portion of the property came to be rejected and the said order is confirmed by the Appellate Court while dismissing the Petitioner's Miscellaneous Civil Appeal No.192 of 2017.

4. The submission of learned counsel for the Petitioner is that, the Petitioner-Plaintiff has come before the Court with a specific case that Respondent has made encroachment on the property owned by the Petitioner and on the said encroached portion, she is carrying out construction. It is urged that, it is also a matter of record that the Respondent has not obtained any permission for carrying out construction. However, both the Courts below have said that, even if no such permission is obtained, it will be for the Planning Authority to take necessary action and the Planning Authority is competent to do so; but, there is no necessity of granting interim injunction, as sought by the Petitioner. According to learned counsel for the Petitioner, this finding arrived at by the Trial Court and confirmed by the Appellate Court, is totally erroneous and not sustainable in the light of the legal position.

5. Learned counsel for the Petitioner has also relied upon various authorities to submit that, when a Suit is for removal of encroachment, unless the Court Commissioner is appointed and his report is brought on record, the exact position or situation at the site cannot come before the Court and, till then, if the nature of the suit property is allowed to be changed, that will cause irreparable loss and hardship to the Petitioner- Plaintiff. Here in the case, learned counsel for the Petitioner submits that, the Petitioner has applied for appointment of such Court Commissioner to determine and assess the encroachment and the Trial Court has now allowed the said application. Therefore, till the report of the Court Commissioner is received, the Trial Court should have restrained the Respondent from carrying out construction on the encroached portion of the suit property.

6. The perusal of the impugned order goes to show that, both, the Trial Court and the Appellate Court have relied upon the provisions of Order 7 Rule 3 of the Civil Procedure Code (Bombay Amendment), which require that, where the subject matter of the Suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Moreover, when the case of encroachment is put up, its sketch showing, as approximately as possible, the location and extent of the encroachment shall also be filed along with the plaint.

7. In the instant case, admittedly, the Petitioner has neither shown the area of the alleged encroachment in the plaint, nor filed along with the plaint any sketch showing approximately possible location and extent of the alleged encroachment. In the absence of such details and the sketch, merely on the vague averment made by the Petitioner that Respondent is carrying out construction by making encroachment on his property, the case of the Petitioner can hardly be accepted. If at all the Petitioner wanted to make out a case that Respondent has made encroachment on his property, then, he should have