Bombay High Court
Abhauajit Sumant Sukare vs Secretary Management Committee ... on 14 July, 2016
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.3515 OF 2016
Abhayajit Sumant Sukare,
Aged about 45 years,
Occupation - Paster,
R/o Christian Colony, Ghutkala Ward,
Chandrapur, Tahsil and District Chandrapur. .... PETITIONER
VERSUS
1) Secretary, Management Committee,
Diosesson Trust, Association,
Cathedral House, Opp. Indian Coffee
House, Sadar Nagpur, Society Registered
under Societies Registration Act,
Registration No.D-5(N).
2) Mrs. Vasantmala Ram Khobragade,
Aged about 63 years,
Occ. - Retired Teacher,
Rajendra Nagar Ward, No.25,
Ballarapur, Tahsil - Ballarpur and
District - Chandrapur. .... RESPONDENTS
______________________________________________________________
Shri S.O. Ahmed, Advocate for the petitioner,
None for respondent No.1,
Shri Ram Khobragade, Advocate for the respondent No.2.
______________________________________________________________
CORAM : Z.A. HAQ, J.
DATED : 14
JULY, 2016.
th
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ORAL JUDGMENT :
Heard Shri S.O. Ahmed, Advocate for the petitioner-
original plaintiff and Shri Ram Khobragade, Advocate for the
respondent No.2-original defendant No.2.
2. The petitioner has filed the civil suit praying for decree for
declaration that the contents of the communication issued by the
defendant No.2 on 20-10-2015 are illegal and without authority. The
plaintiff prayed for decree for permanent injunction restraining the
defendants from obstructing the peaceful possession of the plaintiff
over the suit plot. The plaintiff had filed an application praying for
temporary injunction restraining the defendants from obstructing the
peaceful possession of the plaintiff over the suit plot.
The learned trial Judge dismissed the application filed by
the plaintiff. The plaintiff filed appeal before the District Court which
is dismissed by the impugned judgment.
3. The learned Advocate for the petitioner-plaintiff has
submitted that the claim of the plaintiff is that the suit property was
granted by the Government to the Trust and the Trust allotted the suit
property to Shri Petras Devid (Zitu) Sukare- grandfather of the
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plaintiff, that Shri Petras Devid (Zitu) Sukare died on 22-10-1967
leaving behind three sons Chandrasen, Shamuvel and Sumant, that all
three have died, that the plaintiff is the son of Sumant Sukare and the
defendant No.2 is the daughter of Chandrasen Sukare. According to
the plaintiff, the defendant No.2 got married to Ram Khobragade in
1977/78 and since then she is residing in her matrimonial house. It is
the case of the plaintiff that Chandrasen-father of the defendant No.2
died in 1986 and after that Jessica-mother of the defendant No.2 was
residing with the defendant No.2. According to the plaintiff, he is in
exclusive possession of the suit property and none of the legal heirs of
three sons of Shri Petras Devid (Zitu) Sukare had been occupying the
suit property. In these circumstances, the plaintiff alleges that the
claim made by the defendant No.2 in respect of half of the suit
property on the basis of the alleged Will dated 11-09-2009, the
communication dated 01-06-2015, the communication dated
23-07-2015 and the communication dated 20-10-2015 is not legal and
acceptable. The plaintiff contends that the defendants are trying to
interfere with the peaceful and continuous possession of the plaintiff
over the suit property and therefore, the plaintiff has prayed for
temporary injunction. The plaintiff relied on various documents like
revenue receipts showing the payment of taxes, electricity bills and
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receipts showing the payment and the affidavits of persons residing in
the vicinity. The learned Advocate for the petitioner/plaintiff has
submitted that the order and the judgment passed by the subordinate
Courts overlook the documentary evidence on the record and
therefore, they are unsustainable. It is prayed that the impugned order
and the judgment be set aside and the application filed by the plaintiff
praying for temporary injunction be allowed.
4. The learned Advocate for the respondent No.2 has
supported the impugned order and the judgment.
5. At this stage, it has to be seen whether the plaintiff has
established his settled position over the suit property which entitles
him for the temporary injunction as prayed for by him. The
respondent No.2 has placed on the record the copies of tax receipts
issued by the Municipal Corporation which show that the tax is paid in
the name of Jessicabai-mother of the defendant No.2 for 2007-2008 till
2014-2015. The respondent No.2 has placed on record copies of
receipts showing payment of tax to the Government for Block No.44,
Plot No.13, Sheet No.9. The tax receipts are for 2003 to 2007. These
tax receipts show that the tax is paid by Jessicabai-mother of the
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defendant No.2. The defendant No.2 has also filed affidavits of
persons residing in the vicinity, stating that Jessicabai occupied half of
the suit property.
6. In the above facts, the findings recorded by the
subordinate Courts that the plaintiff has failed to establish his exclusive
possession over the entire suit property, cannot be faulted with. I see
no reason to interfere with the impugned order and the judgment. The
petition is dismissed. In the circumstances, the parties to bear their
own costs.
JUDGE
adgokar
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CERTIFICATE
"I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment."
Uploaded by : P.M. Adgokar. Uploaded on : 22-07-2016.
P.A.
