VITHAL BABARAO DESHMUKH Vs. TUKARAM GANUJI GRESPUNJE

JUDGEMENT

(1.) Original plaintiff has fled this Second Appeal challenging the concurrent dismissal of his suit for declaration, perpetual injunction and possession. It was the case of plaintiff that on the eastern side of his house there existed a public lane as shown by him in map filed along with the list of documents and his neighbour on eastern side has encroached upon it. Though in plaint, the map is mentioned, the map has not been filed as a plaint part, but has been separately filed as a document along with list of documents while filing suit. Both the Courts below have refused to accept the said map and consequently the case of plaintiff came to be dismissed. This Second Appeal is then admitted on 17th July 1992, with question 'whether a carbon copy of map produced by plaintiff and proved by his witness could have been ignored by Courts below while considering plaintiff's right to use of disputed lane '

(2.) I have heard Advocate Shri V.A. Kothale for appellant / plaintiff in this background. Nobody has appeared for respondents.

(3.) Advocate Kothale has stated that the bona fides of appellant / plaintiff are clear from the fact that plaint description of the map matches with the details given in map filed as document. He argues that suit was filed by Advocate and plaintiff has acted as per the said advice and it did not make any difference for plaintiff whether map is filed as part and parcel of plaint or as a document. He points out that plaintiff also examined the person who prepared the map as PW 2 and that person has admitted that he prepared the map. The map has not been exhibited only because it was not original but a carbon copy. According to Advocate Kothale when person drawing the map himself admits that he is the author of the map and also admits that he signed it, the fact that it is carbon copy is not material and the document ought to have been exhibited. He contends that by examining the said person, contents of the map are already proved. He, therefore, states that question as framed needs to be answered in favour of present appellant and his suit needs to be decreed. In the alternative, he argues that case of plaintiff should not be allowed to suffer for no fault on his part and the matter may be remanded back to the trial Court for giving fresh opportunity to plaintiff. He states that the water falling from the roof of the plaintiff's house used to fall in that public / common lane and now because of encroachment upon it, the water percolates in the wall of the plaintiff and damages it. He contents that the cause of action survives and arises from day to day and hence merely because long period has expired, the remand should not be refused.