Bombay High Court
Shri Datu Vithoba Yadav (Since ... vs Shri Dnyaneshwar Sambha Yadav & ... on 7 December, 2011
Bench: R. M. Savant
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8403 of 2011
Shri Datu Vithoba Yadav (since deceased) through LRS Shri Haridas Dattu
Yadav & Ors. .. Petitioners
Versus
Shri Dnyaneshwar Sambha Yadav & Ors. .. Respondents
Mr. K.B.Sonwalkar for the Petitioners
Mr. Vishwanath Talkute for the Respondent Nos.2 & 4 to 7
CORAM : R.M.SAVANT, J.
DATE : 7th DECEMBER, 2011
ORAL JUDGMENT :
1 Rule. With the consent of the parties made returnable forthwith
and heard.
2 The above Petition takes exception to the Order dated 24-8-2011
passed by the Learned District Judge-2, Pandharpur, by which Order, the
Civil Misc Appeal No.33 of 2010 Exhibit 24 filed by the Respondents
herein came to be allowed and resultantly, the Order passed by the Trial
Court granting temporary injunction to the Plaintiffs came to be set aside.
3 The Petitioners herein are the original Plaintiffs who have filed the
suit for injunction restraining the Respondents herein from interfering
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with the Plaintiffs possession in respect of the land bearing Gat No.669.
The said Gat No.669 as per the consolidation scheme ought to be shown
as constituted out of original Survey No.122/1A and 122/1B, but has
been wrongly shown in the Consolidation scheme as in respect of survey
No.122/2. Whereas Gat No.667 ought to have been constituted out of Gat
No.122/2. However, it is the case of the Plaintiffs that in the consolidation
scheme Gat No.669 was wrongly shown constituted out of Survey No.
122/2 and Gat No.667 constituted out of Survey No.122/1A and 122/1B.
It is the case of the Plaintiffs that they have applied for correction of the
consolidation scheme to that effect namely Gat No.667 to be shown as
constituted out of Survey No.122/2 and Gat No.669 to be shown as
constituted out of Survey No.122/1A and Gat No.122/1/B.
4 In so far as, the said correction sought, the said proceedings are
pending before the Deputy Director Land Records, Pune. However, the
TILR Mangalvedha has submitted a report to the Deputy Director Pune
wherein he has mentioned that the Plaintiffs are in possession of the Gat
No.669 on the western side to the extent of 1H and 12 R.
5 The Plaintiffs in the said suit filed by them moved an Application
for temporary injunction. It was the case of the Plaintiffs that the land
owned by the Respondents namely survey No.122/2 which was on the
eastern side was completely acquired for the resettlement of the project
affected persons in the year 1972 and the owner of the said land Hari
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Yadav was compensated and the said land after acquisition was allotted to
one Ramchandra Chavan in the year 1976. One Hari Yadav who is the son
of the original Plaintiff and the brother of Narayan Yadav and Namdev
Yadav has purchased the remaining land from the said Ramchandra
Chavan. However, the cause for filing the said suit was the apprehension
of the Plaintiffs that the Defendants to the said suit i.e. the Respondents
herein would interfere with their possession. The said application for
temporary injunction was tried by the Trial Court and by the order dated
8-3-2010, granted the injunction and restrained the Defendants from
interfering with the possession of the Plaintiffs in respect of Gat No.669 to
the extent of 1 H and 12 R. The Trial Court relied upon the report
submitted by the TILR as also took into consideration the fact that the
land on the Eastern side was acquired by the authorities for the project
affected persons.
6 Aggrieved by the said Order dated 8-3-2010, the Defendants i.e. the
Respondents herein filed Misc Civil Appeal No.33 of 2010. The said Misc
Civil Appeal came to be allowed by the impugned Judgment and Order
dated 24-8-2011. The gist of the reasoning of the First Appellate Court
was that since the Plaintiffs are claiming on the basis of the Sale Deed
dated 5-7-1993 and since the Plaintiffs by the said Sale Deed have
purchased 84 R land by merely showing the defect in the consolidation
scheme to the extent of 28 R land, the plaintiffs were not entitled to the
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injunction as prayed for. The First Appellate Court therefore, set aside the
order dated 8-3-2010 passed by the Trial Court.
7 Heard the Learned Counsel for the parties.
8 The Trial Court, as can be seen from its order dated 8-3-2010 has
relied upon the report submitted by the TILR in the consolidation
proceedings which have been initiated by the Plaintiffs for correction of
the consolidation scheme. In so far as, the conversion of the original
survey to Gat No.667 and Gat No.669, the Trial Court has also taken into
consideration the fact that the land on the eastern side has been acquired
for the project affected persons. However, the Trial Court has not taken
into consideration a very important aspect namely the area mentioned in
the Sale Deed of the Plaintiffs which is to the extent of 24 R in Gat No.
122. The Sale Deed is of the year 1993. It is required to be noted that it is
the averment of the Plaintiffs in the suit filed by them, that though the
area mentioned in the Sale Deed is 84 R, the owner actually intended to
sell the whole portion of the said land 1 H and 12 R. However, by mistake
the 84 R has been mentioned. It is an accepted position that the Plaintiffs
have applied for correction of the consolidation scheme, which
proceedings are as yet pending. This correction is sought on the basis of
the original area of the respective survey numbers. Therefore, as on date,
the Sale Deed of the Plaintiffs is only for 84 R and, therefore, the question
arises whether the Plaintiffs would be entitled to an injunction in respect
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of the entire land in the said Gat No.669.
9 There is a substance in the submission of the Learned Counsel
appearing for the Respondents that the Plaintiffs can not get a relief
beyond the area mentioned in the Sale Deed. However, the fact remains
that there seems to be same dispute in respect of the consolidation
scheme, which is being agitated by the Plaintiffs before the authorities
under the said Act. The First Appellate Court, therefore, ought to have
modulated the reliefs considering the aforesaid factual aspect. However,
the First Appellate court has merely set aside the Order passed by the Trial
Court, in view of the fact that the Sale Deed of the Plaintiffs is for 84 R,
the order of temporary injunction granted by the Trial Court ought to
have been restricted by the First Appellate Court to the extent of the said
area.
10 In so far as, the balance of the area is concerned, in my view, since
the proceedings are pending before the consolidation authorities, the First
Appellate Court ought to have directed the parties to maintain status-quo
in respect of the balance area. The impugned orders therefore passed by
the First Appellate Court is quashed and set aside as also the Order passed
by the Trial Court is quashed and set aside and is substituted by the
following:
(i) The Plaintiff would be entitled to temporary injunction in respect of
Gat No.669 to the extent of 84 R.
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(ii) In so far as, the balance area is concerned, the parties would
maintain status-quo till the consolidation proceedings are decided. The
parties would be entitled to file application before the Trial Court in
respect of the said balance area after the said proceedings are over.
(iii) The above directions would operate pending the Suit, subject to
clause (ii) above in respect of the balance area of 30 RS.
11 Rule is accordingly made absolute in the aforesaid terms with
parties to bear their respective costs.
(R.M.SAVANT, J.)
