Bombay High Court
Smt. Sangita W/O. Pramod Bang, And ... vs Vinod S/O. Hanumandas Bang, And ... on 12 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5443 OF 2015
1. Sangita w/o Pramod Bang
Aged 45 years, Occ. Cultivator
2. Paresh s/o Pramod Bang
Aged 25 years, Occ. Cultivator,
Both Nos.1 and 2 R/o Tanga Chowk,
Old City, Murtizaput, Dist. Akola
ig .... Petitioners.
-vs-
1. Vinod s/o Hanumandas Bang,
Aged 55 years, Occ. Cultivator,
2. Subodh s/o Hanumandas Bang,
Aged 52 years, Occ. Cultivator,
3. Sharad s/o Hanumandas Bang,
Aged 55 years, Occ. Cultivator,
All Nos.1 to 3 R/o Tanga Chowk,
Old City, Murtizaput, Dist. Akola .... Respondents.
Shri M. G. Sarda, Advocate for petitioners.
Shri N. R. Saboo, Advocate for respondents.
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 at length.
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The petitioners are aggrieved by the order passed by the trial Court
below Exhibit-20 thereby directing the petitioner to first measure land
admeasuring 1H 52R from Survey No.224/1A on the Southern portion and
till the same is done, the application for seeking police protection had been
kept in abeyance.
2. The petitioners are the original plaintiffs who have filed suit for
declaration as they are the owners of land admeasuring 2H 1R from field
survey No.224/1A. It has been pleaded in the plaint that there was an oral
partition in the year 1983 and the aforesaid land was allotted to the share of
husband of the petitioner No.1. The defendants were pressurising the
plaintiffs to shift to a particular corner of the entire land and hence an
injunction was also sought to protect the possession. In the written
statement it was denied by the defendants that they were pressurising the
plaintiffs to shift to a particular corner of the land. The plaintiffs applied for
grant of temporary injunction and by order dated 04/03/2015 in
W.P.No.4267 of 2014 this Court held the petitioners entitled for grant of
temporary injunction to the extent of 1H 52R land from survey No.224/1A.
Pursuant to this order the petitioners moved an application seeking police
protection to carry out agricultural operations. By the impugned order, the
trial Court first directed the petitioners to measure the Southern portion of
the land in question and till then the application was kept in abeyance.
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3. Shri M. G. Sarda, the learned counsel for the petitioners submitted
that the trial Court was not justified in directing measurement of the
Southern portion of field survey No.224/1A. According to him, the case as
pleaded in the plaint was denied by the defendants in that regard.
However, the trial Court by passing the impugned order has in fact directed
the petitioners to shift to the Southern portion of survey No.224/1A. He
submitted that the document dated 26/02/2010 titled as a partition deed
could not have been relied upon by the trial Court while passing the
impugned order. He therefore submitted that the impugned order was
liable to be set aside.
4. Shri N. R. Saboo, the learned counsel for the respondents supported
the impugned order. According to him, the direction in question was issued
by taking into consideration the contents of document dated 26/02/2010.
As it was found necessary to demarcate the area in question before
considering the prayer for grant of police protection, the directions in that
regard were rightly issued by the trial Court.
5. I have heard the respective counsel for the parties at length and
perused the documents filed on record. The order passed in W.P.N.4267 of
2014 granting injunction to the extent of 1H 52R land proceeds on the basis
that reference to said share was mentioned in the document dated
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26/02/2010. It was observed that though the petitioners were not
admitting the contents of said document, by taking a prima facie view of the
matter, the order of temporary injunction with regard to the extent of land
mentioned therein was being granted. The trial Court on the basis of the
said document dated 26/02/210 observed that the boundaries of the land
allotted to the husband of the petitioner No.1 indicated that said 1H 52 R
land was on the southern portion of field survey No.224/1A. Reference
was also made to the mutation entries taken on the basis of aforesaid
document. It is to be noted that this adjudication is based on the order
granting temporary injunction and before the parties have led evidence.
The objection of the petitioners with regard to the validity to the document
dated 26/02/2010 is still to be adjudicated. As temporary injunction in
respect of land admeasuring 1H 52 R was granted by considering the
contents of the document dated 26/02/2010, the impugned order passed
by the trial Court by taking into consideration very same document
therefore cannot be faulted. Any interlocutory order would always be
subject to final adjudication in the suit and therefore a direction issued in
that regard cannot be treated as determining the rights of the parties finally.
These directions would always be subject to the decree that would be
passed in the suit. The averments as made in the plaint and in the written
statement which have been relied upon by the learned counsel for the
petitioners would also be taken into consideration when the suit is decided.
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6. Considering the directions issued by the trial Court on the application
filed below Exhibit-20, the same are issued to ensure that the interim order
passed in favour of the petitioners is taken to its logical end. Hence I do not
find any case is made out to interfere in writ jurisdiction.
7. By observing that the directions issued on the application below
Exhibit-20 are only of an interim nature and the trial Court would decide
the suit without being influenced by the observations made in the said
order, the writ petition is dismissed with no order as to costs.
JUDGE
Asmita
