Bhushan Walimbe

Order - Status 3: FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL (ST) NO. 15224 OF 2018 Office Notes, Office Memoranda of Coram, appearance, Court's orders or directions and Court's or Judge's order Registrar's orders CORAM : V. R. Kachare REGISTRAR (JUDL-II) Date : 6/10/2018 Advocate for Appellant present Three weeks time is granted to remove office objections. sd/- REGISTRAR (JUDL-II) Sumit Ramesh Karnik Digitally signed by Sumit Ramesh Karnik Date: 2018.10.16 16:58:33 +0530

Order - Status 5: FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL (ST) NO. 15224 OF 2018 Office Notes, Office Memoranda of Coram, appearance, Court's orders or directions and Court's or Judge's order Registrar's orders CORAM : V. R. Kachare REGISTRAR (JUDL-II) Date : 29/10/2018 None present Three weeks time excluding Diwali Vacation is granted as last chance to remove office objections. sd/- REGISTRAR (JUDL-II)

Order - Status 7: FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL (ST) NO. 15224 OF 2018 Office Notes, Office Memoranda of Coram, appearance, Court's orders or directions and Court's or Judge's order Registrar's orders CORAM : V. R. Kachare REGISTRAR (JUDL-II) Date : 04/12/2018 None present Four weeks time excluding Christmas Vacation is granted to remove office objections, failing which S.A. St. shall stand refused for registration along with all the C.A. St.s filed in this S.A. St., without further reference to the Court. sd/- REGISTRAR (JUDL-II)

Order - Status 10: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO. 818 OF 2019 Kamlu Rama Gaikwad (decease Thru Lrs) 1/1. Bhagubai Kamlu Gaikwad Alisa Gaikar ....Appellant V/S Sukir Hasha Tambade ....Respondent Adv.Deepa Punde i/by Sachin Suryakant Punde For Appellant Adv.Vaishali Penkar i/by Bhushan Walimbe for Respondnet No. 1, 2 & 6 CORAM : AMIT BHALCHANDRA BORKAR, J DATE : 17th January, 2020 P.C. : At the request of learned advocate for the Appellant No. , Stand over to 31/01/2020 ( FOR REGISTRAR JUDICIAL - I )

Order - Status 12: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO. 818 OF 2019 Kamlu Rama Gaikwad (decease Thru Lrs) 1/1. Bhagubai Kamlu Gaikwad Alisa Gaikar ....APPELLANT V/S Sukir Hasha Tambade ....RESPONDENT WITH CIVIL APPLICATION IN SA NO. 1647 OF 2019 In Second Appeal 818 OF 2019 Kamlu Rama Gaikwad (decease Thru Lrs) 1/1. Bhagubai Kamlu Gaikwad Alisa Gaikar ....APPLICANT V/S Sukir Hasha Tambade ....RESPONDENT CORAM : HON'BLE MS. JUSTICE GAURI GODSE J DATE : 19th June, 2024 P.C. : Listed for assigning date. Stand over to 16/08/2024 If any ad-interim / interim relief is operating till today, the same shall continue to operate till the next date. If ad-interim/ interim relief is granted not for a limited period, the same shall remain unaffected. ( FOR REGISTRAR JUDICIAL - I )

Order - Status 14: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION SECOND APPEAL NO. 818 OF 2019 Kamlu Rama Gaikwad (decease Thru Lrs) 1/1. Bhagubai Kamlu Gaikwad Alisa Gaikar ....APPELLANT V/S Sukir Hasha Tambade ....RESPONDENT WITH CIVIL APPLICATION IN SA NO. 1647 OF 2019 In Second Appeal 818 OF 2019 Kamlu Rama Gaikwad (decease Thru Lrs) 1/1. Bhagubai Kamlu Gaikwad Alisa Gaikar ....APPLICANT V/S Sukir Hasha Tambade ....RESPONDENT Mr. Suraj Jadhav h/f Mr. Sachin Punde for Appellant. Mr. Mayank Tripathi i/b Mr. Bhushan Walimbefor Respondent Nos. 1, 2 & 6. CORAM : HON'BLE MS. JUSTICE GAURI GODSE J DATE : 16th August, 2024 P.C. : At the request of learned counsel for the Respondent , stand over to 30/08/2024 as a Last Chance. Under the caption for Urgent Admission. If any ad-interim / interim relief is operating till today, the same shall continue to operate till the next date. If ad-interim/ interim relief is granted not for a limited period, the same shall remain unaffected. ( FOR REGISTRAR JUDICIAL - I )

Order - Status 17: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 818 OF 2019 WITH CIVIL APPLICATION NO. 1647 OF 2019 IN SECOND APPEAL NO. 818 OF 2019 IRESH MASHAL Kamlu Rama Gaikwad .....Appellants (Decd. Thr. LRs) Vs. Sukir Hasha Tambade .....Respondent Mr. Sachin Punde a/w Mr. Suraj Jadhav for the appellants Mr. Bhushan Walimbe a/w Mr. Mayank Tripathi for respondent nos. 1, 2 and 6 CORAM : GAURI GODSE, J. DATE : 30 th AUGUST 2024 ORDER: Heard learned counsel for the parties on the admission of the second appeal. Closed for orders. [GAURI GODSE, J.] Iresh Digitally signed by IRESH MASHAL Date: 2024.09.02 11:31:25 +0530

Order - Status 19: 903-sa-818-2019-ca-1647-2019.doc varsha IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 818 OF 2019 WITH CIVIL APPLICATION NO. 1647 OF 2019 IN SECOND APPEAL NO. 818 OF 2019 Kamlu Rama Gaikwad(Decd. Thr. Lrs) … Appellants/Applicants vs. Sukir Hasha Tambade … Respondent Mr. Sachin Punde a/w. Suraj Jadhav for Appellants/Applicants. Mr. Bhushan Walimbe a/w. Mr. Mayank Tripathi for respondent nos. 1, 2 and 6. CORAM : GAURI GODSE, J. RESERVED ON : 30 th AUGUST 2024 PRONOUNCED ON : 25 th OCTOBER 2024 ORDER: VARSHA VIJAY RAJGURU Digitally signed by VARSHA VIJAY RAJGURU Date: 2024.10.25 20:27:19 +0530 This appeal is preferred by heirs and legal representatives of original defendant no.1 to challenge concurrent judgments and decrees declaring that defendants nos. 1 and 2 have unauthorizedly made encroachment on the suit road as shown in the map at Exhibit-131. The impugned decree further grants a declaration that the plaintiffs and all villagers have legal right to use the suit road. The impugned decree further directs defendants nos. 1 and 2 to remove the unauthorised construction from the suit road and restrains them from raising any construction on the suit road or obstructing plaintiffs and all the villagers from using the suit road. Learned counsel for the appellants submits that the two maps produced on record at Exhibit-138 and 137 are contrary to each other. Hence, based on the said maps, the decree could not have been passed, holding that the suit road is a public road. Learned counsel for the appellants further submitted that only based on the map at Exhibit-137, it could not be accepted that the suit road is a public road, as contended by the plaintiffs. He submits that the suit road is an open land therefore, in the absence of the owner of the land made a party to the suit, the suit was not maintainable. He thus submits that if the suit road is not a public road, the suit filed in a representative capacity would not be maintainable. Learned counsel for the appellants thus submits that the grounds raised on behalf of the appellants would require consideration by this court as the same involves substantial questions of law on whether, by relying upon a map, the suit road could have been declared as a public road for granting declaration and injunction in a representative capacity. He submits that the ground of maintainability of the suit also raises substantial question of law. I have perused the impugned judgments. The defendants never challenged the order permitting the plaintiff to file a suit in a representative capacity. In view of the order permitting the plaintiff nos. 1 and 2 to file a suit in a representative capacity as contemplated under Rule 8(1) of Order I of the Civil Procedure Code, 1908, public notice was issued, and plaintiff nos. 3 to 7 were impleaded as co-plaintiffs, and defendant nos. 3 to 7 were impleaded as additional defendants. The suit describes the suit road by referring to the description of the adjoining properties belonging to the plaintiffs as well as defendant no.1. The plaintiffs contended that the north-south road, i.e. suit road, is situated on the west side of defendant no.1's property which is the only public road available for plaintiffs and all other villagers. The plaintiffs alleged that defendant no.1 carried out constructions on the suit road and obstructed the plaintiff and other villagers from using the suit road hence, the suit was filed in a representative capacity. Defendant no.1 admitted the description of the properties however, they contended that in view of partition, the area of the constructions carried out by him was given to defendant no.2, i.e defendant no.1's son. Thus, defendant no.1 contended that the alleged encroachment was in use of defendant no.1 for the last seven years and that for last 25 to 35 years, the villagers were not using the suit road, and it was being used as an open land by the villagers. Thus, defendant no.1, contended that there were no unauthorised constructions carried out on the suit road, and the constructions carried out by him were in the property bearing CTS No. 23/262, belonging to defendant no.1. From the reasons recorded by both the courts, it is seen that the existence of the suit road is not disputed by defendant no.1. However, he has contended that the area of the suit road was used as open land by the villagers. Thus, from defendant no.1's pleading, it is clear that the dispute raised on behalf of defendant no.1 is not based on any independent right on the suit road, but defendant no.1 contended that it was not being used as a suit road. Pertinently, defendant no.1 contended that the area described as a suit road by plaintiffs was used as open land by the villagers. Based on the evidence produced on record, both the courts accepted the plaintiffs' case that the suit road described in the plaint was a public road, and the land is situated towards the western side of CTS No. 262 as a Gaothan land. In the surveyor's report produced at Exhibit-128, the land was shown as open land; however, the demarcation indicates that when the City Survey was first effected in the year 1964, there was a public road as described by the plaintiffs. The map produced at Exhibit-131 issued by the Assistant Consolidation Officer also reflected the public road. Thus, by relying upon the said maps, both the courts recorded finding of facts that there was a public road in existence as contended by the plaintiffs. A perusal of the findings recorded by the First Appellate Court indicates that after examining the pleadings and evidence on record, the trial court's findings are confirmed by the First Appellate Court. The reasons recorded by both the courts interpreting map at Exhibits 121, 128, 131 and 137 show that the description of the suit road as pleaded by the plaintiffs is accepted as correct. The contentions raised on behalf of the appellants by referring to maps at Exhibits 137 and 128 would amount to re-appreciating the evidence on record. Both the courts have examined the map at Exhibit 128 in detail, along with the map at Exhibits 126 and 131. I do not find any illegality or perversity in the reasons recorded by both the courts by referring to the maps on record. Thus, there is no substance in the arguments raised on behalf of the appellants that the maps at Exhibits 128 and 137 were contrary to each other. It is not the defendant no.1's case that he had any independent right on the area described as a public road. The defendant no.1 has not disputed that he has carried out constructions on the area described by the plaintiffs as a suit road. However, defendant no.1, claims that the area described as a suit road was not a road and was used as an open land by all the villagers. Thus, once defendant no.1 accepts that it is an open land used by the villagers and defendant no.1, does not have any independent right in respect of the said area, he cannot retain his unauthorised constructions on the area admittedly used by the villagers. In view of defendant no.1's admission that the area described as a suit road is used by the villagers as an open land, the contentions raised on behalf of the appellants in the second appeal that the owner of the open land was a necessary party, is not required to be examined for the first time in the second appeal. In view of the rival pleadings of the parties, both courts also dealt with the issue regarding the non-joinder of Gram Panchayat as a necessary party. It is concurrently held that Gram Panchayat would not be a necessary party in the suit filed in the representative capacity, as the issue involved in the suit filed in the representative capacity was on the villager's right to use the suit road. No relief was claimed against the Gram Panchayat. Thus, the reasons recorded by both the courts for holding that the Gram Panchayat was not the necessary party cannot be faulted. Even otherwise, the appellant has admitted that the area described as the suit road is used by the villagers as an open land. Considering the pleadings of defendant no.1, it is clear that the area described as a suit road was admittedly used by the villagers. Thus, in any event, defendant no.1, is not entitled to claim any independent right by carrying out construction on the area used by the villagers as a public road. Thus, the ground raised on non-joinder of the necessary parties would not require any consideration by this court as the same does not raise any substantial question of law. Thus, both the courts have rightly decreed the suit granting a declaration of the existence of the suit road and directing the appellant to remove unauthorised construction and restrained defendant nos. 1 and 2 from raising any unauthorised construction on the suit road. I do not see any illegality or perversity in the reasons recorded in the impugned judgments. In view of concurrent findings of facts recorded on the existence of the public road, the grounds raised on behalf of the appellant would not require any consideration by this court. The second appeal does not raise any substantial question of law. Hence, the second appeal is dismissed. In view of the dismissal of the second appeal, pending application is disposed of as infructuous. (GAURI GODSE, J.)