Bombay High Court
Pravin Pramodrao Dashsahastra And ... vs Municipal Council, Brahmapuri Thr. ... on 2 August, 2019
Author: V. M. Deshpande
Bench: V.M. Deshpande
1 sa245.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.245/2019
Pravin Pramodrao Dashsahastra & Ors. .vs. Municipal Council, Brahmapuri
through its Chief Office and anr.
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. S. V. Sirpurkar, Advocate for appellants.
CORAM : V. M. DESHPANDE, J.
DATED : AUGUST 2, 2019 Heard Mr. S. V. Sirpurkar, learned counsel for the appellants-original plaintiffs.
A suit for declaration and injunction was dismissed by the learned Judge of the trial Court. An appeal was carried and the appellate Court also dismissed the appeal. Consequently, there was confirmation of dismissal of the suit by the appellate Court.
Father of plaintiff no.1 purchased plot no.17 under registered sale deed dated 22.07.1996 from defendant no.3-Manik for a valuable consideration. In 1997, he made construction of his house and started residing. After his demise, plaintiff no.1-Pravin is in possession of the house structure standing on plot no.17. Similarly, plaintiff no.2 purchased plot no. 16 from defendant no.3-Manik in the year 1995. He also made construction and resides therein.
These two plots are carved out from Gat No. 546/1. Respondent no.1-Municipal Council, Brahmapuri ::: Uploaded on - 02/08/2019 ::: Downloaded on - 03/08/2019 04:07:22 ::: 2 sa245.19.odt issued notices on 05.12.2005 (Exh.-52 and Exh.-53). By these notices, both the plaintiffs were informed that after spot inspection, it was noticed that they have made encroachment on public road by fixing an iron gate and also made construction of tin shed. The plaintiffs, therefore, under these two notices were directed to remove encroachment and make available road for ingress and egress.
The plaintiffs filed a suit challenging these two notices. It was the prayer of the plaintiffs that a decree of declaration be given in their favour that these two notices are null and void.
According to learned counsel for the appellants, though the Municipal Council, Brahmapuri remained absent and the suit proceeded ex parte, the layout map is proved and it is at Exh.-54. According to the learned counsel, in this layout map, no road is shown. He, therefore, submitted that the Courts below committed error in dismissing the suit.
It is an admitted position that the plaintiffs have made construction and closed portion "ABCD" by fixing iron gate. Adjacent to plot nos.16 and 17, there exists another layout. Perusal of Exh.-54 would show that there is a road abutting plot no.3 till plot nos. 16 and 17. The submissions of learned counsel are based on this to show that there was no road.
The recitals of notice in challenge would be very relevant for considering this appeal and it is as under:
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lanHkZ%& Jh jk?kosna z uk- ns'keq[k ;kapk rdzkj vtZ] fn- 9-11-2005- mijksDr lanHkkZfdr rdzkj vtkZuwlkj ekSdk&pkSd'kh dsyh vlrk uxj ifj"kn {ks=krhy ekStk&czEgiqjh ;sfFky Hkwekiu dz- 546@1 ps vfHkU;kle/khy vkiys ekydhps Hkw[kaM dz-16 o 17 ps e/;s eatwj vfHkU;kle/;s jLrk n'kZfo.;kr vkysyk ulyk rjhi.k vfHkU;kl/kkjd ;kauh ukxfjdkaph xSjlks; gksÅ u;s Eg.kwu vkiys ekyfdps Hkq[kaM dz-16 o 17 ps e/;s Hkq[kaMkph ykach deh d:u jLrk lksMysyk vlwu R;kpk Li"V mYys[k vkiys jft"VMZ fodzhi=ke/;s dj.;kr vkysyk vkgs o uxj ifj"kndMwu lnjgw jLR;kps [kMhdj.k lq/nk dj.;kr vkysys vkgs-
vki.kkdMwu uqdrhp lnjgw jLrk yks[ a kMh xsV ykowu can dj.;kr vkysyk vlwu lnjgw jLR;kps tkxsoj fVukps 'ksMps cka/kdke lq/nk dj.;kr vkysys vkgs- vki.kkl jft"VMZ fodzhi=kuqlkj ns.;kr vkysys tkxsps O;frfjDr vki.kkdMwu lkoZtfud jLR;kps tkxsoj vukf/kd`ri.ks yko.;kr vkysys xsV o 'ksMps cka/kdke csdk;nsf'kj vlwu lnjgw uksVhl izkIr >kysiklwu 7 fnolkps vkr lnjgw vfrdze.k cka/kdke dk<wu ?ks.;kr ;kos o rlk ys[kh vgoky uxj ifj"kn dk;kZy;kr lknj djkok- vU;Fkk uxj ifj"knsdMwu vkiys vfrdze.k cka/kdke dk<wu ?ks.;kph o vfrdze.kkrwu fu?kysys lkfgR; tIr dj.;kph dk;Zokgh dj.;kr ;sbZy] ;kaph izkeqw[;kus uksna ?;koh-
lgh eq[;kf/kdkjh uxj ifj"kn] czEgiqjh The recitals of Exh.-53 are identical to the recitals of Exh.-53.
The plaintiffs again claimed title to the area, which is not mentioned in the sale deed. The plaintiffs in their evidence have admitted as under:
::: Uploaded on - 02/08/2019 ::: Downloaded on - 03/08/2019 04:07:22 :::4 sa245.19.odt "नन. कर. ५६ मधधल अससल नवककपततमधयय पललट कमतमक १६ चयत चतततसधमयमधयय दनकणयस लयआऊट मधधल ६ मधटर रमद रतसतत असय कत ललनहणयतत आलयलय आहय, हय मलत मतनहत नतहध "
In the notice (Exh.-52), it is specifically pointed out that though in the layout map road is not shown, in order to avoid inconvenience to the citizens, the length of plot nos.16 and 17 was reduced. Registered sale deed clearly shows the said position.
In that view of the matter, both the Courts below rightly recorded a finding that the plaintiffs cannot claim ownership over the disputed portion and it being the public road, they will not entitled to raise construction and consequently, the notices were found to be legal.
The present appeal in view of the aforesaid discussion, does not involve any substantial question of law. Consequently, the appeal fails and it is dismissed.
JUDGE kahale ::: Uploaded on - 02/08/2019 ::: Downloaded on - 03/08/2019 04:07:22 :::