Devkumar S/O Kawdu Meshram vs Shankar S/O Jayalal Ramani And ...
2016 Latest Caselaw 3739 Bom

    21-J-WP-5736-15                                                                                 1/4


                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                            
                            NAGPUR BENCH, NAGPUR.




                                                                    
                              WRIT PETITION NO.5736 OF 2015


    Devkumar s/o Kawdu Meshram
    aged about 46 years, Occ. Business, 




                                                                   
    r/o Shri Nagar, Gondia, 
    Tah. & Dist. Gondia                                                 ... Petitioner. 

    -vs- 




                                                      
    1.  Shankar s/o Jiyalal Ramani    
    aged about Major, Occ. Business, 
    r/o Kshatriya Marg, Sri-Nagar, 
    Gondia, Tah. & Dist. Gondia 
                                     
    2.  Binaram s/o Dhanuji Chouragade
    aged about 60 years, Occ. Business, 
    r/o Sri-Nagar, Gondia, 
              

    Tah. & Dist. Gondia                                                 ... Respondents. 
           



    Shri V. R. Borkar, Advocate for petitioner.  
    Shri K. S. Motwani, Advocate for respondent No.1. 
    Shri A. N. Vastani, Advocate for respondent No.2. 





                                                      CORAM  :  A.S.CHANDURKAR, J. 

DATE : July 12, 2016

Oral Judgment :

In view of notice for final disposal, the learned counsel for the

parties have been heard finally.

The petitioner is the original plaintiff who has filed suit for

permanent injunction seeking to restrain the defendants from disturbing his

possession over the plot No.350 admeasuring 1200 sq.ft. It is the case of the

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petitioner that the defendants were claiming to be the owners of the suit

property from either side of the plot. Along with the suit, an application for

temporary injunction seeking to restrain the defendants from erecting any

construction over the suit plot came to be filed. The trial Court by order

dated 21/01/2015 allowed the said application for temporary injunction.

Both the defendants filed separate appeals challenging the aforesaid order.

The appellate Court allowed the appeal filed by the defendant No.2 but

dismissed the appeal filed by the defendant No.1. Being aggrieved, the

plaintiff has filed the present writ petition.

2. Shri V. R. Borkar, the learned counsel for the petitioner submitted

that the appellate Court was not justified in reversing the order of temporary

injunction. According to him, the defendant No.2 had undertaken

construction on the portion of the suit property and therefore he was rightly

restrained by the trial Court. According to him, the appellate Court without

any justifiable reason allowed the appeal preferred by the defendant No.2.

According to him, plot No.350 was admeasuring 2400 sq. ft. and the

petitioner was in possession of 1200 sq.ft. From the documents on record it

was clear that the defendants were trying to encroach upon said plot No.350.

It was then submitted that if any construction was undertaken on the suit

property, the same would cause irreparable loss to the plaintiff. He placed

reliance upon judgment of the Honourable Supreme Court in (2009) 10 SCC

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388 Zenit Mataplast P. Ltd. vs. State of Maharashtra and ors.

3. Shri K. S. Motwani, the learned counsel for the respondent No.1

supported the impugned order. According to him, the construction in

question had been undertaken in plot No.349 of which the defendant No.2

was the owner. Necessary permission had been obtained from the Municipal

Council before commencing the construction. He then submitted that there

was no material placed on record by the plaintiff to indicate that the

defendant No.2 was undertaking any construction on plot No.350. He

therefore submitted that there was no reason to interfere with the impugned

order.

Shri A. N. Vastani, the learned counsel appeared for the

respondent No.2.

4. Having heard the respective counsel and having perused the

documents on record, I do not find that the appellate Court committed any

error in allowing the appeal filed by the defendant No.2. The appellate

Court found that the defendant No.2 had purchased plot No.349 on

24/07/2013. After obtaining permission from the Municipal Council on

27/05/2014, the construction has been commenced. The appellate Court

further found that there was no material on record to indicate that the

alleged construction was on a portion of plot No.350. The impugned order

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also indicates that the appellate Court was satisfied that there was no prima

facie case made out by the plaintiff. The decision of the Honourable

Supreme Court in Zinit Mataplast P. Ltd. that was relied upon by the

learned counsel for the petitioner reiterates the principles for grant of

temporary injunction. After examining the impugned order, I am satisfied

that these tests have been kept in mind by the appellate Court while allowing

the appeal filed by the defendant No.2. The view as taken by the Appellate

Court is a possible view of the matter based on the documents on record. In

view of aforesaid, there is no case made out to interfere in writ jurisdiction.

However, in the facts of the case, the proceedings in R.C.S. No.236 of 2014

are expedited. The trial Court shall decide the suit on its own merits

without being influenced by any observations made in the impugned order or

in this order.

The writ petition is dismissed with no order as to costs.

JUDGE

Asmita