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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO.766 OF 2012

Aajabrao s/o Kashiram Desle (Patil),

Age-47 years, Occu:Business,

R/o-Village Deobhane,

Tq. & Dist-Dhule

...APPELLANT

(Orig. Plaintiff)

VERSUS

1) Sau. Kesharbai w/o Shankar Patil,

Age-69 years, Occu:Agriculture

& Business, R/o-Village Deobhane,

Tq. & Dist-Dhule,

2) The Tahsildar, Dhule,

Tq. & Dist-Dhule.

...RESPONDENTS

(Orig. Defendants)

...

Shri Amol S. Sawant Advocate for Appellant.

Shri Shrikant S. Patil Advocate for Respondent

No.1.

Shri S.R. Palnitkar, A.G.P. for Respondent

No.2.

...

CORAM: A.I.S. CHEEMA, J.

DATE OF RESERVING JUDGMENT : 17TH JANUARY,2014.

DATE OF PRONOUNCING JUDGMENT: 22ND JANUARY, 2014.

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JUDGMENT :

1.

The Appellant in this Second Appeal is

the original Plaintiff who brought suit against

Respondent Nos.1 and 2 (original Defendants)

(Parties to be referred as arrayed in the trial

Court), for permanent injunction to restrain them

from taking steps to remove tea stall put in front

of GALA i.e. shop purchased by him from Defendant

No.1 Kesharbai. The Court of 2nd Joint Civil

Judge, Senior Division, Dhule, dismissed the

Regular Civil Suit No.152 of 2006 on 20^th November,

2008. The Regular Civil Appeal No.51 of 2009 filed

before the Principal District Judge, Dhule by the

Plaintiff, also came to be dismissed on 27^th April,

2011. Now this Second Appeal has been brought

against the concurrent Judgments.

2.

The case in brief, as brought before the

trial Court was as under:-

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(A) Gut No.71 at Devbhane, Taluka and District

Dhule is owned by Defendant No.1. From this, 38

Are land was permitted by Defendant No.2 to be

converted into non agricultural land. In such

land, ten plots were made. In Plot No.10, small

shops of 10 ft. X 15 ft. were made. From these

shops, Plaintiff has purchased one shop of 10 ft.

X 15 ft. The land concerned is bounded as under:

East: Bombay-Agra Highway,

West: Plot No.9,

South: Remaining land of Gut No.71

North: Road going to Devbhane village.

(B)

The suit as brought by the Plaintiff claimed

that there is open space of Gut No.71 in front of

the shop, towards the East, used as way. It is

claimed (in Plaint Para 3) by the Plaintiff that

in front of his shop, there is portion of Gut

No.71 abutting the Bombay-Agra National Highway

and the portion is open and yet not taken in

possession by the National Highway Authorities for

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expansion of the road. Plaintiff has put hotel in

the place purchased by him and the place in front.

The hotel put by him is not by way of

encroachment, however, Defendant No.1 complained

to Defendant No.2 that there is encroachment on

the road and Defendant No.2 was pressurizing

Plaintiff to remove the same. The structure put up

by Plaintiff is temporary of wood and sack-cloth.

If the same is removed, the Plaintiff will suffer

in source of his livelihood. Thus, the suit.

3.

The Defendants appeared and filed written

statements and the suit was contested. Issues were

framed and the parties led oral and documentary

evidence on record. Trial Court after examining

the oral and documentary evidence, held that the

Plaintiff failed to prove that the tea stall was

in the Plot No.10 of Gut No.71. It was found that

the Plaintiff had made the tea stall by

encroaching on open land. It was also held that

Plaintiff was not entitled to injunction as

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prayed. Trial Court discussed map of T.I.L.R.

brought on record at Exhibit 64. The temporary

construction was made on corner of East and North

side in the open space in front, which was

adjacent to