MUNICIPAL COUNCIL SHIRDI Vs. SONIYA DEVIDAS PATIL

JUDGEMENT

(1.) Heard learned counsel Mr. N. D. Sonawane instructed by Advocat e Shri. V. D. Hon, who appears for the appellant. This Second Appeal is filed by the defendant No. 2 in Regular Civil Suit No. 48/94. (The parlies hereinafter are referred to their original stat us as plaintiff and defendants in Regular Civil Suit No. 48/94 ).

(2.) The plaintiff had filed Regular Civil Suit No. 48/2004 on October 26, 1994 against the defendants for perpetual injunction. THE suit, after hearing the parties, came to be dismissed by the Trial Court by its judgment and order passed on October 12, 2001. This judgment, dismissing the suit, was challenged by the plaintiff in Regular Civil Appeal No. 3/2002. This Regular Civil Appeal No. 3/2002, after hearing the parties came to be allowed by the learned Additional District Judge, Kopargaon by its judgment and order dat ed October 18, 2004, and dismissal of the Regular Civil Suit No. 48/1994 was quashed and set aside by the First Appellat e Court. THE First Appellat e Court decreed the suit with costs. THE defendants were directed to remove the construction of the road, passing through the land of plaintiff on/or before 30th November, 2004. This judgment and decree passed by the First Appellat e Court on October 18,2004 in Regular Civil Suit No. 3/2002 is the subject mat ter of this Second Appeal.

(3.) From the papers, it appears that Regular Civil Suit No. 48/1994 was in respect of agricultural land Survey No. 94 (suit land ). Area of this land is not given in description of the property. However, boundaries have been specifically given. In para 2 of the plaint, a stat ement is made that suit property is owned by the plaintiff and it is in actual physical possession of the plaintiff since about 60-70 years prior to the dat e of filing of this suit. The suit land earlier was in the name of fat her of plaintiff and after his demise, plaintiff succeeded to the suit property. To the southern side of the suit property, land survey Nos. 95 and 90 are situat ed. The owner of the land survey No. 95, had committed an encroachment over the suit property in the year 1990-91. Plaintiff had applied for measurement to the District Inspector of Land Records. To the Southern side, Survey Nos. 95 and 90 are situat ed. However, there is no public road. Suit land was never acquired by the Stat e Government or defendant No. 2 Municipal Council. Grievance is raised that defendant No. l with the aid of defendant Nos. 1 and 3 was trying to construct road from the southern side of the suit property. The said road, admitted by the defendants, runs in east west direction. On October 20, 1994, sonstruction mat erial had been brought by the defendants. Therefore, prayer for decree of perpetual injunction in para No. 6 (A) was made. Though reference in the body of the plaint is made regarding construction of road by the defendants from the southern side of the suit land, para 6 (A) i. e. prayer clause specifically seeks a decree for perpetual injunction against defendants Nos. 1 to 3 in relat ion to possession of the plaintiff over the land Survey No. 94 i. e. suit property and especially for construction work of the road from suit land and/or prayer clause 6 (B) makes a prayer that in case defendants succeed in constructing the road from the suit land, the said construction of the road may be removed and plaintiff be permitted to enjoy the suit property peacefully.