Renuka Thakur 905-SA-572-2023.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 572 OF 2023 WITH CIVIL APPLICATION NO. 1553 OF 2019 Chandrakant Tulshiram Gavali and Anr. ...Appellants V/s. Jairam Murlidhar Gavali ...Respondent WITH SECOND APPEAL NO. 574 OF 2023 WITH CIVIL APPLICATION NO.1551 OF 2019 IN SECOND APPEAL NO. 574 OF 2023 Prabhakar Dhondiram Bhusare And Ors. …Appellants V/s. Jairam Murlidhar Gavali ...Respondent ________________ Mr. Rohan D. Kaiche for Appellants. Ms. Jyoti Bajpayee Pandey for Respondent. ________________ CORAM: SANDEEP V. MARNE, J. DATED: 11 SEPTEMBER 2026. P.C.: Page No. 1 of 5 11SEPTEMBER 2026 2026:BHC-AS:37972 Renuka Thakur 905-SA-572-2023.docx 1) These Appeals challenge the judgments and orders passed by the Principal District Judge, Nashik on 3 January 2018 in Regular Civil Appeal Nos. 342 of 2012 and 344 of 2012. The Lower Appellate Court has dismissed the Appeals preferred by the Appellants and has confirmed the decrees of the Trial Court dated 27 August 2010 passed in Regular Civil Suit Nos. 301 of 2007 and 303 of 2007. 2) I have heard Mr. Kaiche, the learned counsel appearing for the Appellants and Ms. Bajpayee Pandey, the learned counsel appearing for the Respondent and have considered the submissions canvassed by them. 3) Plaintiff’s Suit was for removal of encroachment and recovery of possession of encroached portion. It is Plaintiff’s case that Appellants/Defendants encroached upon portions of his land and constructed houses thereon. Appellants/Defendants were served with suit summons. However, they did not appear before the Trial Court and the suit proceeded ex-parte. Plaintiff examined himself and relied upon measurement map of Taluka Inspector of Land Records(TILR) to prove the encroachments on land admeasuring 109 Sq. Mtrs and 35 Sq. Mtrs. The Trial Court accordingly proceeded to decree both the Suits on 27 August 2010. 4) Appellants preferred Appeals under Section 96 of the Code of Civil Procedure, 1908 (Code) before the Principal District Judge. Their case before the District Court was that service of summons was improper. However, in case of Appellants-Chandrakant Gavli and Lilabai Gavli, it Page No. 2 of 5 11SEPTEMBER 2026 Renuka Thakur 905-SA-572-2023.docx was established that Defendant No. 2 (Lilabai Gavli) accepted the suit summons for herself and on behalf of her husband. Acceptance of service was also witnessed by another person. In case of Bhusare's, the Appellate Court has recorded a finding that Defendant Nos. 1 and 2 were out of station and their suit summons and copies were pasted on conspicuous part of the residential house of the Defendant as per order V Rule 17 of the Code. Similarly, the Bailiff had met mother of Defendant No. 1 at the time of pasting of the suit summons. I am satisfied that in the both the suits, there has been a proper service and the first Appellate Court has rightly refused to set aside the decrees on the ground of improper service. 5) It is sought to be contended on behalf of the Appellant- Gavlis that Plaintiff’s case in the affidavit of evidence was in respect of encroachment to be extent of only 621 Sq. Ft in the operative part of the decree, removal of encroachment of land admeasuring 109 Sq. Mtrs is ordered. However, it appears that the Trial Court has taken into consideration the measurement map, which clearly indicated encroachment on portion of land admeasuring 109 Sq. Mtrs. Therefore, there is no error in the decree passed in the case of Gavlis for removal of encroachment from land admeasuring 109 Sq. Mtrs. 6) It is argued on behalf of the Appellants that the measurement map of TILR relied upon by the Trial Court has been subsequently set aside by the Sub-Divisional Officer (SDO). It is submitted that this ground was specifically urged in the Appeal filed before the first Appellate Court. Though a vague ground of setting aside Page No. 3 of 5 11SEPTEMBER 2026 Renuka Thakur 905-SA-572-2023.docx measurement map by SDO, Nashik in encroachment Application No. 5/2007 was raised in the Appeal memo, the so called order of SDO, Nashik was not attempted to be produced before the Appellate Court by filing Application under Order 41 Rule 27 of the Code. Thus, apart from vague ground raised in the Appeal memo, the first Appellate Court did not have the benefit of perusal of any such order of SDO. Even before this Court, the so called order of the SDO is not produced. In my view, therefore, there is no reason to discard the measurement map of TILR which is relied upon by the Trial and the first Appellate Courts. 7) It is also sought to be contended on behalf of the Appellants that they are allotted houses under Indira Awas Yojna and that therefore there is no encroachment in the present case. There is no written statement by the Appellants and therefore this Defence cannot be really taken into consideration. However, even if the aspect of non filing of the written statement is to be momentarily ignored, mere construction of houses under Indira Awas Yojana does not ipso facto mean that the construction is legal or that Appellants have become owners of the land beneath the houses. Under the scheme, Appellants may have received funding for construction of houses. However, ultimately it is proved that the houses are constructed on the lands belonging to the Plaintiffs. Therefore, there is no error on the part of the Trial and the Appellate Courts in directing removal of encroachments. Considering the overall conspicuous of the case I am of the view that no substantial question of law is involved in the Appeals. The concurrent findings recorded by the Trial and the first Appellate Courts appear, to my mind, to be Page No. 4 of 5 11SEPTEMBER 2026 Renuka Thakur 905-SA-572-2023.docx unexceptional. Both the Appeals are devoid of merits. They are accordingly dismissed. 8) In view of dismissal of Appeals, above Civil Applications do not survive and are accordingly disposed of. [SANDEEP V. MARNE, J.] Page No. 5 of 5 11SEPTEMBER 2026 Signed by: Renuka S Thakur Designation: PA To Honourable Judge Date: 17/09/2026 15:33:31