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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FIRST APPEAL NO.822 OF 2009

Manohar Ramchandra Chaugule

since deceased through Legal heirs

Hirabai Manohar Chaugule & Ors. ..Appellants

versus

The Central Railway ..Respondent

Mr.Pradeep Kadam for the appellants

Mr.A.N.Samant for the respondents

CORAM : R.Y.GANOO, J.

DATE : 18^th JUNE, 2009.

P.C:

1. The appellants claim to be the owners in respect

of CTS No1/41 admeasuring 2385 sq. yards situated

at Mumbai and according to the appellants on a

particular date they found that the respondents,

namely the Railway Authorities have encroached on

the land owned by the appellants, more

particularly set out in the plaint Exhibit A to

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the suit. The appellants felt aggrieved by the

action on the part of the respondents and

therefore instituted S.C.Suit No.2616 of 2001 in

the City Civil Court at Bombay. Along with the

plaint a rough sketch was drawn and the encroached

portion by the railway was indicated by paint Nos.

A, B. C and D. According to the appellants the

Railway committed encroachment in regard to the

encroached the portion as A, B, C and D and were

to construct a wall. According to the appellants,

during the time when the construction of the wall

was incomplete the appellants approached the Court

and obtained interim relief so as to see that the

wall is not complete. The appellants had full

dressed trial. The learned Judge of the City

Civil Court granted full opportunity to the

parties to place before the Court their respective

cases in as much as the appellants examined only

two witnesses whereas the respondents examined

their witnesses, including Mr. Rao, an Engineer.

The learned trial Judge after considering the

entire record dismissed the suit by Judgment and

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Decree dated 9.4.2009.

2. Against this Judgment and Decree dated 9.4.2009

the appellants have instituted the present appeal.

3. Learned Advocate Mr. Kadam and learned Advocate

Mr.Samant appearing on behalf of the appellants

and respondents respectively were extensively

heard.

4. The learned trial Judge had dismissed the suit on

two main counts, namely the appellants failed to

show that the respondents committed tresspass on

the property owned by the appellants and that the

appellants had not jointed Union of India as party

defendant though the alleged activity was said to

have been done by the railway department as part

and parcel of Union of India. The learned trial

Judge also dismissed the suit on the ground that

required notice under Section 80 of CPC was not

given to the Union of India.

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5. Before this Court, learned Advocate Mr.Kadam

raised the points on the basis of which the

learned trial Judge had dismissed the suit. I

indicated to learned Advocate Mr.Kadam that this

Court may not go into the points on the basis of

which the learned Judge dismissed the suit on what

may be referred to as technical points. It is to

be noted that the learned trial Judge had recorded

a finding that the Appellants have failed to show

that the respondents have committed tresspass as

alleged. I indicated to the learned Advocate for

the appellants that if the appellants can show

that the finding recorded on the main point as

mentioned is not correct then the appellants are

entitled to have this appeal admitted. It is with

these observations the hearing of the first appeal

was conducted at the stage of admission.

6. Learned Advocate Mr. Kadam was afforded

opportunity to point out on the basis of record,

including the evidence to show as to how the

learned Judge erred in arriving at the conclusion

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that the appellants failed to show that the

respondents had committed tresspass on the

property.

7. In so far as this aspect is concerned, learned

Advocate Mr. Kadam had dr