Shivaji Bhau Kondhare vs Rohidas Tanaji Kondhare
2011 Latest Caselaw 230 Bom

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               IN THE  HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL  APPELLATE JURISDICTION




                                                                           
                        WRIT PETITION NO.9790 OF  2011




                                                   
     Shivaji Bhau Kondhare                                  ..       Petitioner
             Versus
     Rohidas Tanaji Kondhare                                ..       Respondent




                                                  
     Mr. N.P. Mule for the Petitioner
     Ms Jayashri Avhad for the Respondent




                                      
                                   CORAM  :  R. M. SAVANT, J.

                         ig        DATED   :  15th 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 21-10-2011 

passed by the Learned District Judge, Pune, by which Order, the Misc

Civil Appeal No.227 of 2011 filed by the Respondent herein, came to be

allowed and resultantly the Order dated 1-7-2011 granting temporary

injunction to the Petitioner in Regular Civil Suit No.788 of 2011, came

to be set aside.

3 Shorn of unnecessary details, the few facts can be stated thus:

The Petitioner is the owner of the suit property being

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Grampanchayat No.2089 which is in the gaothan of the village

Ambegaon Budruk. The Respondent is in occupation of the property

bearing No.1320 in the same survey No.13 of the said village. The

Petitioner herein filed the suit for permanent injunction in respect of the

said property No.2089 to the effect that the Respondent herein who is

the Defendant to the said suit should not encroach upon his property. In

the said suit, the Petitioner filed an application for temporary injunction

as the Defendant/Respondent was proceeding with the construction on

site. In so far as the said application for temporary injunction is

concerned, the parties relied upon the documents of the grampanchayat

in support of their respective cases. The said documents are in the form

of Village Form No.8 which is issued by the Village panchayat. The

Plaintiff also relied upon a hand drawn sketch showing the plot of the

plaintiff as well as the Defendant.

4 The Trial Court heard the said application Exhibit-5 and by its

order dated 1-7-2011 allowed the said application and injuncted the

Defendant from interfering with the possession of the plaintiff as also

from carrying out encroachment till the disposal of the suit.

5 Aggrieved by the said Order dated 1-7-2011 passed by the Trial

Court, the Respondent herein filed an Appeal being Misc Civil Appeal

No.227 of 2011. The said Appeal as mentioned herein above came to be

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allowed by the impugned order dated 21-10-2011 and consequently the

Order passed by the Trial Court on 1-7-2011 granting temporary

injunction to the Plaintiff came to be set aside.

A reading of the Order passed by the First Appellate Court

discloses that the First Appellate Court recorded a finding that there is

no prima facie evidence to support the Plaintiff's contention that is

property No.2089 is adjacent to the Property No.1320 of the Defendant

on the south side and he is making construction by encroaching upon

the property No.2089. The First Appellate Court has observed that the

Plaintiff has not placed on record a map showing actual location of his

property No.2089 situated at the gaothan in the said Ambegaon Budruk.

The Order discloses that though the Village Form No.8 has been referred

to by the First Appellate Court, the First Appellate Court nevertheless

has reached to a conclusion that the property of the Plaintiff was not

adjacent to the property of the Defendant.

6 I have heard the Learned Counsel for the parties at some length

and have also gone through the material which was placed before the

Courts below. In so far as, the Village Form No.8 of the Defendant is

concerned, it exfacie discloses the name of the occupant as Kondhare

Rohidas Tanaji (Padwal Vatsalabai Baban). The Form No.8 on which

reliance is placed by the Plaintiff shows that in so far as the land

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bearing No.2089 is concerned, it is in the gaothan and to the north is

the property of Koditkar and Padwal. It is an undisputed position that

the Respondent/Defendant has purchased the property from Padwal.

The Plaintiff has also filed an Affidavit of a Villager which is in the

paper book of the Petitioner, who has mentioned that the land of the

Plaintiff and the Defendant are adjacent to each other. In the teeth of

the documents issued by the grampanchayat, which documents in my

view, have not been properly appreciated by the First Appellate Court

whilst reaching to a conclusion that the two properties of the Plaintiff

and the Defendant are not side by side. On what basis the First

Appellate Court has reached such a conclusion is not clear from the

impugned Order. In the facts of the case wherein the Trial Court has

observed that the boundaries of the plot of the Defendant are

ambiguous. It was required for the First Appellate Court to get a report

in respect of the position on site by appointing a Court Commissioner.

The said report would have crystalised in a way the dispute between the

parties and would have made things clear. Such a course of action is

required to be followed in view of the fact that the Defendant is putting

up RCC construction and once the said construction is complete, the

position would become irreversible. The Trial Court on an appreciation

of the material on record had reached a conclusion that the Plaintiff was

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entitled to the said discretionary relief. For the First Appellate Court to

set aside the said Order, a strong case as regards perversity in the

findings of the Trial Court ought to have been made out. Just because a

different view is possible, on the basis of the same set of facts it was not

open for the First Appellate Court to set aside the order of the Trial

Court without there being good grounds for the same.

7 Considering the nature of the dispute that is involved, in my view,

the interest of justice would be served if the impugned order passed by

the First Appellate Court is set aside and the following directions are

issued.

(i) Misc Civil Appeal filed by the Defendant, in view of the setting

aside of the impugned order, is remanded back to the First Appellate

Court for a de novo consideration.

(ii) The First Appellate Court is directed to appoint a Court

Commissioner preferably the TILR of the Taluka in question to survey

the two properties and submit a report to the Court as regards the

position on site.

(iii) On the said report being submitted, the parties would be entitled

to a copy of the same and would thereafter be also entitled to file their

objections if any in respect of the said report.

     (iv)    The First Appellate Court would thereafter take up the Appeal for 





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hearing and after giving proper opportunities to the parties including

the opportunity to produce additional material on record, dispose of the

same by 31-3-2012.

(v) In the meantime, the order passed by the Trial Court dated

1-7-2011 would continue to operate till the disposal of the said Appeal

by the First Appellate Court. It is made clear that no further

construction should be carried out by the Defendant.

Rule is accordingly made absolute in the aforesaid terms with

parties to bear their respective costs.

( R. M. SAVANT, J. )