JUDGMENT A.B. Chaudhari, J. 1. Being aggrieved by judgment and decree dated 29-8-2006 in Reg. C.S. No. 120/2006 dismissing the suit filed by appellant and confirmed in Reg C.A. No. 78/2006 on 9-9-2009 passed by District Judge-1, Washim, the present second appeal has been filed by the unsuccessful plaintiff. This Court, at the time of admission on 13-4-2010, framed following substantial questions of law: "(A) Whether the Gram Panchayat had jurisdiction to take action for removal of encroachment, against the plaintiff by notice dated 10-7-2006, when the fact of alleged encroachment was brought to the notice of Gram Panchayat on 23-2-2005 and section 53(2-A) empowers the Gram Panchayat to take action for removal of encroachment within a period of 6 months from the date on which the alleged encroachment is brought to the notice of Gram Panchayat? Answer: Gram Panchayat has jurisdiction to take action for removal of the encroachment even beyond the time limit of six months from the date of which the alleged encroachment is brought to the notice of Gram Panchayat." 2. In support of the appeal, Mr. Khapre, learned counsel for the appellant, submitted that there is perversity on the part of the courts below in dismissing the suit filed by the appellant-plaintiff by holding that the appellant-plaintiff did not prove the title to the suit property. According to him, there is ample evidence on record to the contrary and, therefore, the finding of fact recorded by both the courts below are perverse and thus no substantial question of law arises in the present appeal. He further argued that it is an admitted position that the mutation entry is in favour of the appellant, vide report Exh.-82 and payment of taxes for the suit property to the Gram Panchayat were accepted by the Gram Panchayat and other relevant oral and documentary evidence clearly indicate that at least the appellant did have possessory title. He, then argued that it was not shown by the Gram Panchayat as to whether the Gram Panchayat had title or better title than the appellant and, therefore, the appellant was entitled to injunction against the Gram Panchayat on the basis of settled position about possessory title since no other person has better title than the appellant. He, then argued that it was not shown by the Gram Panchayat as to whether the Gram Panchayat had title or better title than the appellant and, therefore, the appellant was entitled to injunction against the Gram Panchayat on the basis of settled position about possessory title since no other person has better title than the appellant. He, then argued that the Gram Panchayat did not prove or establish that the suit property was owned by Gram Panchayat or that it vested in him and, therefore, there was no reason for the courts below to dismiss the suit filed by the appellant-plaintiff. Though, Mr. Khapre agreed that there was neither any pleading nor evidence in the courts below about question framed by this Court at the time of admission, the same being the question of law and being covered by the decision of this Court in the case of Tukaram s/o. Lingappa Nagthane vs. Grampanchayat Karyalaya, Sowargaon, 1989 Mh.LJ. 535 : 1988 (3) Bom. C.R. 351, the question of law already framed by this Court should be answered in favour of the appellant. Mr. Khapre also relied on other decisions, which are cited hereunder: M. Kallappa Setty vs. M.V. Lakshminarayan Rao; AIR 1972 SC 2299 , Baburao Yeshwantrao Naikwadi vs. Sarpanch/Gramsevak, Grampanchayat Office, Ter Dist. Osmanabad; 2012 (5) Mh.LJ. 408 3. Per contra, Mr. S.R. Deshpande, learned counsel for the respondent-Gram Panchayat, vehemently argued that there is clear cut finding of fact recorded by both the courts below that the appellant-plaintiff, who went to the court claiming injunction, could not even prima facie or finally prove his title to the suit property. He claimed that he had purchased the suit property from one Khandu Motiram Gawande but then Khandu himself had no title because Khandu was residing as an encroacher in the temporary structure near Bhavani temple and the suit land and the entire open area near the temple was for use of the temple. He claimed that he had purchased the suit property from one Khandu Motiram Gawande but then Khandu himself had no title because Khandu was residing as an encroacher in the temporary structure near Bhavani temple and the suit land and the entire open area near the temple was for use of the temple. The entire area neighboring the Bhavani temple on which the encroachment was made by the appellant, in fact, is that of village open spaces and, therefore, even if it is not brought on record as to the title of the temple, the suit property still remains a vacant land in the village panchayat area and is required to be protected by village panchayat and for which power is given to the village panchayat to remove the encroachment. Mr. Deshpande, therefore, prayed for dismissal of the appeal. 4. Upon hearing learned counsel for the rival parties and from reading of the plaint and entire record that the plea about extinguishment of power of the Gram Panchayat to remove encroachment after six months from the date on which the encroachment is brought to the notice of the gram panchayat was not at all set up nor any issue was framed to that effect and, therefore, on facts the said question did not at all arise. However, since Mr. Khapre, Advocate vehemently argued that in the wake of admitted facts on record, he should be allowed to raise the said question. I have heard him. 5. I have carefully considered the submission. I also find that it is necessary to have adjudication on the said question since there is judgment of learned Single Judge of this Court, which I find to be not in consonance with the relevant provisions of the Maharashtra Village Panchayats Act. Hence, following additional substantial question of law is framed by me. "(B) Whether the finding of fact recorded by the courts below that the appellant-plaintiff failed to prove his title to the suit property is perverse? Answer: No." Before taking up question (A) aforesaid for consideration, I propose to deal with question (B) since it will have to be decided first on facts and evidence as to whether finding of fact recorded by courts below is perverse. I take up question No. (B) accordingly. 6. It is not in dispute that the appellant-plaintiff claimed to have purchased the suit property by sale deed Exh. I take up question No. (B) accordingly. 6. It is not in dispute that the appellant-plaintiff claimed to have purchased the suit property by sale deed Exh. 43 from one Khanduji Gawande. In the written statement, that was filed by the Gram Panchayat, a specific plea was taken and also a witness Raju Shelke for Gram Panchayat was examined and it was established that Khandu Gawande himself was an encroacher and was residing in the temporary structure made by him near the open site/space of Bhavani Devi temple. He was residing near Bhavani Devi temple in the open space nearby in the village and was, therefore, a permissible user. Khandu was not examined by the appellant despite this specific pleading and proof. When it was a specific case of the Gram Panchayat that Khandu himself was an encroacher and did not have any saleable interest over the suit property, the appellant-plaintiff ought to have proved to the contrary. However, that did not happen. Reliance placed by Mr. Khapre, learned counsel for the appellant, on tax receipts, assessment, mutation entry in the Gram Panchayat record or possession for few years over the suit property, in my opinion, would not confer title on the appellant-plaintiff. It may be that the Gram Panchayat mutated his name, collected taxes from him and accepted his possession over the suit property but in the absence of clear legal title in favour of the appellant, he could not be said to be the title holder of the suit property, which is an open site in the village panchayat area near Bhavani temple. The theory of possessory title argued before me by the plaintiff-appellant will have to be rejected. The reason is that even if the suit open site did not belong to the Bhavani temple, as contemplated by section 53(2-A) of the Maharashtra Village Panchayats Act, it is the open site in the village which is not the private property. Therefore, even if it was not proved that the property belonged to Bhavani temple, the argument that the appellant had a better or possessory title, must be turned down because under the Maharashtra Village Panchayats Act, the said open site near Bhavani temple, on which there is encroachment made by the appellant, whether vested or not vested in the Gram Panchayat, must be held to be amenable to sub-section (2) of section 53(1) of the Act. Therefore, this is not a case where Gram Panchayat did not have power to act as contended by Mr. Khapre. The judgment of the Supreme Court cited by him, therefore, has no application. 7. Instead of repeating the evidence and reasons, it would be appropriate to quote following paragraphs from the judgments of the trial court as well as the lower appellate court, with which I fully agree, since I find no wrong with the said finding of fact. "Paras 10 and 11 of judgment of trial Court: 10. The plaintiff in his statement states that he has purchased this suit property for `4,000/- from Khanduji Gawande, r/o. Kodala Zambre and has filed said sale deed at Ex. 43 and claimed that he has become owner of property in accordance with said sale deed. Witnesses of Grampanchayat Raju Shelke has stated in his deposition that Khandu Motiram Gawande was never owner of suit property and he never sold suit property to plaintiff. Khandu Zambre himself was encroacher and therefore plaintiff cannot get tile to property plaintiff has filed sale deed at Ex. 43 and has answered in cross-examination all the questions asked to him. However, defendant has filed affidavit of Khandu Gawande and in said affidavit Khandu Gawande states that he was residing in property owned by Bhavani Devi temple. He has obtained property from temple and has given said property to plaintiff for permissive user and has not executed any sale deed in favour of plaintiff. Plaintiff has not objected to the said affidavit and has not examined said Khandu Gawande in order to prove the sale deed. 11. In order to prove that plaintiff and others have encroached over open courtyard of said Bhavani Devi temple Grampanchayat has started proceeding of removal of encroachment and in order to prove the same defendant Grampanchayat has examined persons encroaching over said open courtyard namely Datta Gawande, Ramesh Gawande and Kastura Wankhede. They have stated in their deposition that there is Bhavani temple in village and there is open courtyard around said temple and they have encroached over said open courtyard and having received the notice from Grampanchayat for removal of encroachment. Along with them plaintiff has also encroached on northern side of said open Courtyard. All these witnesses have been cross-examined and have given negative answers to questions asked by plaintiff. Along with them plaintiff has also encroached on northern side of said open Courtyard. All these witnesses have been cross-examined and have given negative answers to questions asked by plaintiff. They have stated in their cross-examination that Khandu Gawande was residing in village prior to 8 to 10 years. All these witnesses have not stated that what is property number of open Courtyard of temple so also plaintiff has also not given property number of said open Courtyard in his deposition so also there is property number given in sale deed filed by him. Therefore, question arise as to what is the number of property of said open Courtyard of temple." "Para 10 and 11 of judgment of lower appellate Court: 10. The sale deed Exh. 43 pertains to some open space and some constructed portion admeasuring East-West 22 ft. and North-South 20 ft. (440 Sq. ft.). The Gram Panchayat number of the property is nowhere mentioned in the said sale deed. Along with an application Exh. 35, plaintiff has produced a Xerox copy of his application addressed to the Secretary of defendant (dated 3-7-2000) stating therein that he had purchased the Gram Panchayat house property number 132 admeasuring 40.89 sq. meter from Khandu Gawande. Thus, it can be seen that according to plaintiff he had purchased the house property G.P. Number-132 from Khandu by virtue of registered sale deed Exh. 43 from the document Exh. 43, it is clear that on the Southern side of the property of 440 sq. ft. purchased by plaintiff from Khandu, there was property of one Srihari Sutar. However, as per the description of the suit property given in para - 1 of the plaint, there is the Temple of Goddess Bhavani Devi on Southern Side of suit property. 11. It is not clear as to exactly where the property of Srihari Sutar is located. Be that as it may, the fact remains that there is some difference in the description of the property mentioned in the sale deed Exh. 43 and the description of suit property. However, one thing is abundantly clear that by virtue of sale deed Exh. 43, plaintiff had purchased the property admeasuring 22 Ft X 20 ft. = 440 sq. ft. and not the property of 35 ft X 22 ft. = 770 sq. ft. Even though plaintiff had purchased same property of 440 sq. ft. However, one thing is abundantly clear that by virtue of sale deed Exh. 43, plaintiff had purchased the property admeasuring 22 Ft X 20 ft. = 440 sq. ft. and not the property of 35 ft X 22 ft. = 770 sq. ft. Even though plaintiff had purchased same property of 440 sq. ft. from Khandu, yet he is claiming title to the entire suit property of 770 sq. ft." In the wake of above finding of fact and discussion made by me, I find that question No. (B) will have to be answered in the negative. I find that the finding of fact recorded by both the Courts below are legal and correct. 8. Before dealing with question (A), it would be appropriate to quote provision of section 53(2) and (2-A) of the Maharashtra Village Panchayats Act and Rule 3 of the Bombay Village Panchayats (Period for Removal of Obstruction and Encroachment) Rules, 1971. "Section 53.(1) Whoever, within the limits of the village, (a) builds or sets up any wall, or any fence, rail, post, stall, verandah, platform, plinth, step or structure or thing or any other encroachment or obstruction, or (b) deposits, or causes to be, placed or deposited, any box, bale, package or merchandise or any other thing, or (c) without written permission given to the owner or occupier of a building by a panchayat, puts up, so as to protect from an upper storey thereof ,any verandah, balcony, room or other structure or thing, in or over any public street or place, or in or over or upon any open drains, gutter, sewer or aqueduct in such street or place, or contravenes any conditions, subject to which any permission as aforesaid is given or the provisions of any by-law made in relation to any such projections or cultivates or makes any unauthorised use of any grazing land, not being private property, shall, on conviction, be punished with fine, which may extend to fifty rupees and with further fine which may extend to fifty rupees for every day on which such obstruction, deposit, projection, cultivation or unauthorisd use continuous after the date of first conviction of such offence. (2) The panchayat shall have power to remove any such obstruction or encroachment and to remove any crop unauthorisedly cultivated on grazing land or any other land, not being private property, and shall have the like power to remove any unauthorised obstruction or encroachment of the like nature in any open site not being private property, whether such site is vested in the panchayat or not, provided that if the site be vested in Government the permission of the Collector or any officer authorised by him in this behalf shall have first been obtained. The expense of such removal shall be paid by the person who has caused the said obstruction or encroachment and shall be recoverable in the same manner as an amount claimed on account of any tax recoverable under Chapter IX. (2-A) If any panchayat fails to take action under sub-section (2) within such time as may be prescribed, the Collector suo motu or on an application made in this behalf may take action as provided in that sub-section. The expenses of such removal shall be paid by the person who has caused the said obstruction or encroachment or unauthorised cultivation of the crop and shall be recoverable from such person as an arrear of land revenue." "Rule 3: Time-limit for removal of obstruction, encroachment or unauthorised cultivation of crop by panchayat - The time-limit shall, for the purpose of sub-section (2-A) of section 53, be six months from the date on which the obstruction, encroachment or authorised cultivation of the crop is first noticed by, or is brought to the notice of a panchayat." 9. In the case of Tukaram s/o. Lingappa Nagthane (supra), the learned Single Judge of this Court in relation to the aforesaid provision, in paragraphs 8, 9 and 11 held thus: "8. The time limit as provided under sub-section (2-A) is prescribed by the rules known as the Bombay Village Panchayats (Period for Removal of Obstruction and Encroachment) Rules, 1971, sub-rule (3) of these rules provide that the time limit for the purpose of sub-section (2-A) of section 53 is six months from the date on which the obstruction, encroachment or unauthorised cultivation of the crop:-- (a) is first noticed by. (b) is brought to the notice of a Panchayat. 9. (b) is brought to the notice of a Panchayat. 9. In view of the provisions of section 2-A and the said rules, the gram panchayat is empowered to remove obstruction within a period of six months from the date when the encroachment is noticed for the first time by the panchayat. In the present case it is not in dispute that the encroachment was noticed for the first time by the village panchayat in the year 1961 which is clear from the averments in the written statement. The notice for removal of encroachment is given on 28-5-1976. The power to remove encroachment is given to the village panchayat which is to be exercised within the time prescribed i.e. within six months from the date of notice of encroachment by Panchayat. The notice issued by the village panchayat for removal of encroachment dated 28-5-1976 is, therefore, in contravention of the provisions of sub-section (2-A) read with the relevant rules. 10. ..... 11. The learned Counsel Shri Deshpande, appearing for the respondent-gram panchayat, contended that the provisions of sub-section (2-A) do not govern the right to exercise power vested in the village panchayat under sub-section (2) of section 53 of the Act. I am unable to appreciate this contention at all. If provisions of sub-sections (2) and (2-A) are harmoniously construed, it will have to be presumed that the power granted to the village panchayat under sub-section (2) for removal of encroachment has to be exercised within the time limit prescribed by sub-section (2-A) and thereafter it is for the Collector to act on an application or sou motu. The gram panchayat cannot take any action for removal of encroachment after the time limit prescribed under sub-section (2-A)." 10. The learned Single Judge of this Court categorically held that the power to remove encroachment can be exercised by the Gram Panchayat within six months from the date of notice of encroachment by the Gram Panchayat and, thereafter, Gram Panchayat has no right to remove encroachment i.e. after six months. This Court also held in paragraph 11 that after expiry of time limit of initial six months, it is for the Collector to act on an application or suo motu. The Village Panchayat cannot take any action for removal of encroachment after the period of six months. This Court also held in paragraph 11 that after expiry of time limit of initial six months, it is for the Collector to act on an application or suo motu. The Village Panchayat cannot take any action for removal of encroachment after the period of six months. I have carefully and analytically considered the said decision cited supra in the light of the aforesaid provisions of the Act and the rules. 11. It is well settled rule of interpretation of statutes that rules framed by the State Government are subordinate to the substantive provisions of the Act and must be read as supplemental to the substantive provisions. It is true that rule 3 of the Maharashtra Village Panchayat Taxes & Fees Rules, 1960, prescribes time limit of six months for the purpose of sub-section (2-A) of section 53 of the Bombay Village Panchayats Act but then the said rule does not say that after six months, the village panchayat becomes functus officio or is denuded of its power to remove encroachment. Similarly, neither sub-section (2) nor (2-A) expressly or impliedly negates such a power. On both these counts, therefore, I am not prepared to accept the submission made by Mr. Khapre, Advocate that Rule (3) must be understood to mean a prohibition on the Gram Panchayat to act for removing encroachment after expiry of period of six months. Now, coming to the provision of section 53(2) and (2-A). A conjoint reading of Sub-sections (2) and (2-A), to my mind, in the first place nowhere even remotely indicate that failure of Gram Panchayat to remove the encroachment beyond the time limit of six months as prescribed in Rule 3 of the Rules would automatically result into the Gram Panchayat being denuded of its powers to remove encroachment. In the absence of clear legislative intent or prohibition against the Gram Panchayat to that effect, it would be disastrous to read such a prohibition in these provisions. On the contrary, sub-section (2-A) provides that if Panchayat fails to take action, the remedy is provided before the Collector for removal of encroachment either suo motu or otherwise. But then again there is no prohibition in sub-section (2-A) against the Gram Panchayat from removing encroachment according to law beyond the time limit of six months in exercise of powers under sub-section (2) of section 53 of the Act. But then again there is no prohibition in sub-section (2-A) against the Gram Panchayat from removing encroachment according to law beyond the time limit of six months in exercise of powers under sub-section (2) of section 53 of the Act. In my opinion, the provision of section (2-A) was inserted and Collector has been vested with power to remove encroachment if Gram Panchayat, for any reasons including any political reason or as the case may be, deliberately or intentionally or innocently or for any extraneous reasons, does not take action to remove encroachment at all within six months. But that does not mean that after expiry of period of six months, the Gram Panchayat will not be able to remove encroachment or will not be able to exercise powers under sub-section (2) of section 53 of the Act. The very object of the engrafting these provisions of removal of encroachment is that open sites/spaces in the villages, which are being largely encroached at the cost of public utility spaces for the public at large should be saved. In fact, today, that has become the order of the day in the villages, towns and cities in the country. By holding that the Gram Panchayat will have no power to remove encroachment after six months, the very object of empowering village panchayat for removal of encroachments in the village panchayat area would stand defeated. The Collector may not get time to act suo motu for removing encroachment in hundreds of villages within his jurisdiction. It would be harmonious to construe that the provision of sub-section (2-A) has been made in addition to the provision of sub-section (2) of section 53 of the Act and not in derogation thereof. To repeat, these provisions nowhere impliedly or explicitly prohibit Gram Panchayats from exercising powers under sub-section (2) of section 53 of the Act. I, therefore, hold that the judgment of the learned Single Judge and reasons in paragraph Nos. 8, 9 and 11 in the case of Tukaram s/o. Lingappa Nagthane cited supra will have to be held to be per incuriam, being contrary to the provisions of the Act and the Rules. 12. Sub-section (1) of section 53 of the Act, as quoted above, clearly shows that the Gram Panchayat has been given power to remove encroachment upon public streets and upon site (vide marginal note). 12. Sub-section (1) of section 53 of the Act, as quoted above, clearly shows that the Gram Panchayat has been given power to remove encroachment upon public streets and upon site (vide marginal note). It is also clear further that the encroachment in or over in public street or place, upon any open drains, gutter, sewer, which are not private properties, do fall under sub-sections (1), (2). The only exception is that it should not be a private property. The burden of proof that the said site or place is not a private property, cannot be shifted on the Gram Panchayat and, in my opinion, it must lie on the shoulder of the person claiming it to be his private property and, in this case, the appellant-plaintiff, who miserably failed. 13. I, therefore, disagree with Mr. Khapre, learned counsel for the appellant, that the burden of proof that it is not a private property, would be on the Gram Panchayat and not on the plaintiff. I, therefore, answer question (A) that the Gram Panchayat has jurisdiction to take action for removal of the encroachment even after time limit of six months from the date of which the alleged encroachment is brought to the notice of Gram Panchayat. Consequently, the decision in the case of Tukaram s/o. Lingappa Nagthane is held to be per incuriam. In the light of above, I pass the following order: ORDER (i) Second Appeal No. 439/2009 is dismissed. (ii) Learned counsel for the appellant, at this stage, prays for ten weeks' stay to the present judgment and order. Time granted as prayed for. No order as to costs.