The Nagpur Improvement Trust, Nagpur Through Its Chairman v. Reeta W/O Sharad Shukla And Others

1307sa93.15.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR Second Appeal No.93 of 2015 (The Nagpur Improvement Trust, Nagpur,, through Chairman v. Reeta Sharad Shukla and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri R.O. Chhabra, Advocate for Appellant.

Shri S.K. Parthy, Advocate for Respondent Nos.1 and 2. Shri A.P. Chorghade, Advocate for Respondent No.3. Coram : R.K. Deshpande, J.

Date : 13 th July, 2016 The original defendant is before this Court against the concurrent findings of fact recorded by both the Courts below. The Trial Court passed a decree granting declaration that the nullah was originally running through Galli No.7 of Mahalaxmi Nagar No.3, Manewada Road, Nagpur, as per the old city survey map and the revenue record, and it is far away from the suit property. The defendant is restrained from carrying out any construction of nullah across the suit property without following due process of law.

The lower Appellate Court dismissed the appeal, but also issued mandatory injunction on 19-8-2014, directing the defendant to fill up the entire dug-out portion of the suit property

1307sa93.15.odt of the plaintiff Nos.1 and 4.

The appellant-defendant was causing damage to the property of the plaintiffs by way of encroachment. The stand of the appellant-defendant was that the plaintiffs were unauthorized occupants of the suit property and that the work of digging was being carried out in the suit property for canalization of nullah, which was in existence since last many years. The appellant-defendant did not examine any witness. The lower Appellate Court has held that it was never the stand taken by the defendant that the work of canalization started on the nullah, which was in existence since last many years. The activities of digging and carrying out the construction over the property owned by the plaintiffs are held to be illegal and, therefore, the mandatory direction has been issued by the lower Appellate Court for restoration of possession by filling up the entire dug-out portion of the suit property. The findings of fact recorded by both the Courts below are based upon the evidence available on record.

Thus, no substantial question of law arises for consideration. The second appeal is dismissed. Judge.

Lanjewar