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2020 DIGILAW 1067 (BOM)

Sadashiv v. Laijabai

2020-09-25

ANIL SATYAVIJAY KILOR

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JUDGMENT : Anil Satyavijay Kilor, J. 1. In the suit for declaration and mandatory injunction alleging encroachment on the land owned by the appellant/plaintiff, the 5th Joint Civil Judge, Junior Division, vide judgment and decree dated 28/02/2005, dismissed the suit, which has been upheld by the District Judge-12, Nagpur vide judgment and decree dated 27/01/2012 in Regular Civil Appeal No. 178/2005, the same is under challenge in the present appeal. 2. This Court on 09/10/2012, while admitting the appeal, framed the following substantial question of law. "Whether the courts below have committed an error in holding that the plaintiffs have failed to establish the encroachment by the defendants over the area of 23 ½ sq. ft. from the southern side over the property of the plaintiff?" 3. The facts leading to the present appeal are that the plaintiff filed a suit for declaration, permanent and mandatory injunction. It is the case of the plaintiff that he owns suit property namely Nazul Plot No. 267, Ward No. 69 Mouza Pandharabodi, Telangkhedi, Ramnagar, Nagpur admeasuring 198.50 sq. meters and he is residing there since 1940. 4. He further pleads that the defendant no. 1 and her sister Smt. Saijabai were residing on the backside of the suit property and defendant nos. 2 and 3 are the sons of defendant no. 1. 5. It is the further case of the plaintiff that in 2003 he got the suit plot measured and boundaries demarcated and thereupon constructed a compound. 6. He further states that the defendants after demolishing the old house, started new construction in the first week of August 2003, and while fixing centering for slab, the defendant had encroached upon the land of the plaintiff from southern side of the plot and thereby made encroachment to the extent of 23 ft. of ½ ft. 7. Hence, he filed a suit for declaration that the defendants have no right, title or interest or locus-standi to encroach and construct over the area of the suit property, owned and possessed by the plaintiff and for permanent injunction restraining the defendant from encroaching and constructing, any area of the suit property. Further he prayed for mandatory injunction to remove the encroachment, admeasuring 34 and ½ sq. ft. on southern side of the suit property. 8. The defendants failed to file written statement, the Trial Court therefore proceeded without written statement of the defendants. 9. Further he prayed for mandatory injunction to remove the encroachment, admeasuring 34 and ½ sq. ft. on southern side of the suit property. 8. The defendants failed to file written statement, the Trial Court therefore proceeded without written statement of the defendants. 9. The plaintiff examined himself and two witnesses namely Shri Prakash Sirpat Pande and Sadashiv Lakhuji Chaudhari. The defendants failed to cross-examine all the three witnesses of the plaintiff. 10. The learned Trial Court after considering and analyzing oral as well as documentary evidence produced on record by the plaintiff, dismissed the suit by holding that the plaintiff has failed to prove that the defendants have encroached upon the suit property, vide judgment and decree dated 28/02/2005. 11. Feeling aggrieved by the judgment and decree dated 28/02/2005, the plaintiff preferred an appeal under Section 96 of the Civil Procedure Code. The same has also been dismissed by the learned First Appellant Court vide judgment and decree dated 27/01/2012, passed in Regular Civil Appeal No. 178/2005. The same has been assailed in the present appeal at the behest of the plaintiff. 12. Heard Shri R.S. Sundaram, learned counsel for the appellant and Shri U.J. Deshpande, learned counsel for respondent nos. 2 and 3. 13. Shri R.S. Sundaram, learned counsel for the appellant submits that the defendants did not enter into witness box and both the Courts below have wrongly presumed that the alleged encroachment is on the ground floor whereas the plaintiff has made specific pleadings in the plaint that illegal and unauthorized construction encroaching the plaintiff's plot by covering the slab from East to West. It is submitted that the said pleadings have not been taken into consideration by both the Courts below and therefore, both the Courts below have committed error in holding that no encroachment has been proved by the plaintiff. 14. He further points out that the plaintiff himself entered into witness box to prove his specific contention that the encroachment has been made by the defendants by covering the slab. In absence of any cross-examination by the defendants, the said evidence ought not to have discarded by both the Courts below. 15. He argues that the findings given by the First Appellate Court as regards the non-compliance of provisions of Order VII Rule 3 of the Code of Civil Procedure by the plaintiff, is in fact, not a mandatory provisions. 16. 15. He argues that the findings given by the First Appellate Court as regards the non-compliance of provisions of Order VII Rule 3 of the Code of Civil Procedure by the plaintiff, is in fact, not a mandatory provisions. 16. He further submits that the evidence of the plaintiff has gone unchallenged in absence of any cross-examination and therefore the learned both the Courts ought to have held in favour of the plaintiff. 17. Per contra, Shri U.J. Deshpande, learned counsel for the respondents submits that the provision of Order VII Rule 3 of Civil Procedure Code is mandatory provision and there is no compliance of the said provision and in absence description of property and map filed by the plaintiff, the Courts below have rightly held that the plaintiff has failed to prove his case that the defendants have encroached upon the suit property from the southern side. 18. He further submits that the concurrent findings of facts cannot be interfered in the Second Appeal, unless it is shown that such findings are without evidence and same are perverse. By arguing so, he prays for dismissal of the suit. 19. To consider the rival contentions of the parties, I have gone through the record and proceedings and perused the relevant provisions and the judgments. 20. At this stage, it is germane to refer to the provision of Order VII Rule 3 of the Civil Procedure Code which reads thus- "3. Where the subject-matter of the suit is immovable property.- 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. In case of encroachment a sketch showing as approximately as possible the location and extent of encroachment shall also be filed along with the plaint." 21. In the light of the above provision, if the findings of both the Courts are considered, both the Courts have held that the plaintiff has not given a schedule of property nor given boundaries of the suit property or even he did not produce any map or sketch drawn by some expert. 22. In the light of the above provision, if the findings of both the Courts are considered, both the Courts have held that the plaintiff has not given a schedule of property nor given boundaries of the suit property or even he did not produce any map or sketch drawn by some expert. 22. The sketch map which was produced on record by the plaintiff does not bear signature of any person therefore, the said map was not considered by both the Courts below as the same was not in compliance of Order VII Rule 3 of the Civil Procedure Code. 23. If the pleadings are looked into, in paragraph 10 of the plaint, which reads as under: "10. That the plaintiff has issued a telegraphic notice on 5.8.2003 about the illegal and unauthorized construction encroaching the plaintiff's plot by covering the slab from east to west about 23' x 1 ½' = 34 ½ sq.ft. and also lodged a report with PSO PS Ambazari, Nagpur, previously; at that time, the defendants stated before the PSO that they will remove the encroachment made over the area of the suit property within a few days; but all of the sudden, the defendants have completed the illegal and unauthorized encroachment and construction over the plaintiff's plot. Therefore, the present plaintiff has reported the matter to N.M.C., Town Planning Section, Nazul Department and P.S.O. P.S. Ambazari, but still the illegal and unauthorized construction is in progress. Therefore, the plaintiff is rather constrained to institute the present suit for the following reliefs:- (a) As the defendants have encroached on the southern side about 23' x 1 ½' = 34 ½ sq. ft. from east to west over the suit-property, it has become necessary to declare that the defendants have encroached upon the land of the plaintiff and the construction of the defendants is illegal and unauthorized one, as it is stated without obtaining a due permission (NOC) from the competent authority and not to sanctioned map for new construction, further it has become necessary to declare that the defendants have no right, title or interest to continue the construction over the area of the suit-property." 24. The above referred pleadings state that a telegraphic notice was issued on 05/08/2003, about illegal and unauthorized construction encroaching the plaintiff's plot by covering the slab from East and West, about 23 ft. The above referred pleadings state that a telegraphic notice was issued on 05/08/2003, about illegal and unauthorized construction encroaching the plaintiff's plot by covering the slab from East and West, about 23 ft. x 1 ½ = 34 ½ sq. ft. In the same paragraph, in the subsequent part, the plaintiff has pleaded that "the defendants have completed the illegal and unauthorized encroachment and construction over the plaintiff's plot." 25. The plaintiff only at one place, mentioned about encroachment by the plaintiff by covering slab, else everywhere in the body of the plaint, it is mentioned that the defendants have encroached over the suit plot of the plaintiff. 26. In the light of the said fact, both the Courts below have rightly held that the plaintiff has failed to prove encroachment over the suit land. Moreover admittedly the plaintiff got his land measured prior to the construction started by the defendants in that event, the plaintiff has not pleaded and proved whether the defendants have demolished the compound and made an encroachment. 27. The contention of the learned counsel for the appellant that in absence of written statement and cross-examination, both the Courts below ought to have decreed the suit in view of the oral as well as documentary evidence laid by the plaintiff, cannot be accepted in view of the above referred facts and in the light of the judgment of the Hon'ble Supreme Court of India in the case of C.N. Ramappa Gowda Vs. C.C. Chandregauda and another reported in (2012) 5 Supreme Court Cases 265. "25. We find sufficient assistance from the apt observations of this Court extracted hereinabove which has held that the effect of non-filing of the written statement and proceeding to try the suit is clearly to expedite the disposal of the suit and is not penal in nature wherein the defendant has to be penalised for non-filing of the written statement by trying the suit in a mechanical manner by passing a decree. We wish to reiterate that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order 8 Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the fact pleaded in the plaint. 26. It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy. In that event, the ex parte judgment although may appear to have decided the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal which ultimately compounds the delay in finally disposing of the suit giving rise to multiplicity of proceeding which hardly promotes the cause of speedy trial." 28. Thus, in view of the above observations and in absence of any perversity pointed out by the learned counsel for the appellant/plaintiff, I am not inclined to interfere in the concurrent findings of facts recorded by both Courts below in the present matter. Accordingly, I answer the substantial question in negative. The appeal is dismissed. No order as to costs. LATTER ON 29. At this stage, learned counsel for the appellant prays for stay of operation of the judgment on the stay is since beginning. 30. Shri U.J. Deshpande, learned counsel for the respondents strongly opposes the said request. 31. Since this Court has already held that the plaintiff has failed to prove any encroachment in the present matter, I do not find it necessary to continue stay granted by this Court. Accordingly, the request made by the learned counsel for the appellant is rejected.