Satyanarayan Surajmal Dargad And ... vs Sagar Sakharam Chindrawar And ...
2016 Latest Caselaw 3906 Bom

                                         1                    WP-7208.16.doc


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                          
                         BENCH AT AURANGABAD

                          WRIT PETITION NO. 7208 OF 2016




                                                 
     1]       Satyanarayan s/o Surajmal Dargad
              Age:58 years, Occu. Business,
              R/o. Yeldari Road, Jintur,




                                                
              district - Parbhani

     2]       Sau. Shivkanya w/o Satyanarayan Dargad
              Age: 55 years, Occu. Household,
              R/o. As above




                                       
              Both the petitioners through their GPA
              Holder Santosh s/o Shriram Dargad
                             
              Age: 40 years, Occu. Business,
              R/o. Yeldari Road, Jintur,
              Dist. Parbhani                           ... Petitioners
                            
                                                    (Orig. Plaintiffs)
              VERSUS

     1]       Sagar s/o Sakharam Chidrawar
              Age: 33 years, Occu. Business,
      


              R/o. Market Yard, Jintur,
              Tal. Jintur, Dist. Parbhani
   



     2]    Jintur Municipal Council, Jintur
           Dist. Parbhani
           Through its Chief Officer                ... Respondents





                                   .....
     Mr. Swapnil S. Rathi, Advocate for petitioners
     Mr. M. M. Patil (Beedkar), Advocate for respondent No.1
                                   .....





                                   CORAM :   SUNIL P. DESHMUKH, J.

DATE : 18th JULY, 2016 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard with

consent of the learned advocates of appearing parties, finally.

2 WP-7208.16.doc

2. The petitioners-plaintiffs are before this court, aggrieved

by order on application Exhibit-92 in Regular Civil Suit No. 75

of 2015 pending before Civil Judge, Junior Division, Jintur,

District Parbhani, moved by petitioners-plaintiffs seeking re-

framing of issues as have been contained in the application.

Application Exhibit-97 was moved by the respondents-

defendants for similar purpose has also been rejected along

with application Exhibit-92 filed by the petitioners-plaintiffs.

3. After hearing learned counsel, the position emerges that

the plaintiffs-petitioners have instituted suit seeking perpetual

and mandatory injunction against defendants in respect of

property described in the plaint and respondent No.1-

defendant No.1 has lodged a counter claim, also seeking

perpetual injunction against plaintiffs in respect of the

property described in the counter claim.

4. The issues upon the pleadings of the parties have been

framed at Exhibit-86 as have been annexed to this writ

petition as Exhibit-"C" at page 29, which are seven in number.

5. The first issue is about encroachment by defendants

over the property and making construction thereon. The

second issue is with regard to entitlement of plaintiffs for

3 WP-7208.16.doc

mandatory injunction. Third relates to plaintiffs' entitlement to

recover of possession of the encroached portion. Fifth issue

casts burden on the defendants, as to whether plaintiffs are

causing interference in construction being made by them over

the property described in the counter claim.

6. Mr. Rathi, learned counsel for petitioners submits that

suit of the plaintiffs is absolutely not for recovery of

possession and it is also not their case that defendants have

caused encroachment upon their property, rather it is that the

defendants are trying to cause encroachment and in the

process, some activity was sought to be undertaken for

construction over the property claimed by the plaintiffs and as

such, it was the cause of action for the plaintiffs to institute a

suit for perpetual and mandatory injunction.

7. Learned counsel submits that the pleadings by plaintiffs

and the defendants would not give rise to the first and third

issues instead the plaintiffs suggest an issue under Exhibit-92

as issue No.1, which is to the effect that whether plaintiffs

prove that defendants are making encroachment over the

area and making construction.

4 WP-7208.16.doc

8. According to learned counsel, said issue would suffice

the purpose of the plaintiffs instead of issues No. 1 and 3 as

have been framed. He submits that the issues have been cast,

giving indication that it is being assumed that the plaintiffs

have accepted that they have lost possession and as such,

against rejection of application the petitioners are before this

court.

9.

On the other hand, Mr. M. M. Patil (Beedkar), contends

that the trial court has taken into account relevant factual

position as is material, including photograph, which to quite

some extent shows that some activity of construction has

already taken place and iron work for pillars is clearly being

depicted in the photographs. In the circumstances, the issues

as have been framed in fact to a large extent would resolve

the dispute. He submits that, as a matter of fact issues as are

appearing may benefit the plaintiffs more rather than

defendants, albeit, the plaintiffs, would be required to

discharge burden.

10. The learned judge has reproduced the averments of the

plaintiffs in plaint paragraph No.3, in the impugned order,

which read thus;

5 WP-7208.16.doc

" jkrksjkr oknhaP;k ekydh o rkC;kP;k oknfeGdrhP;k

mRrjsdMhy vlysY;k 1-83 ehVj :an o 33-55 ehVj ykac ,o<îk eksdG;k tkxsoj ts-lh-ch e'khuP;k lkákus ik;kps

[kksndke dsys-"

11. Perusal of the impugned order shows that from the

portion reproduced hereinabove, the court has considered

that the plaintiffs are no longer in possession and as such will

require to claim back the possession, coupled with further

consideration that the photographs also depict that there is

iron work for pillars being appearing and as such, the order

has been passed.

12. Be that as it may, as far as framing of issues is

concerned, one would have to consider that parameters as

appearing in Order XIV of the Code of Civil Procedure will

govern the situation, particularly, pleadings would give rise to

issues, from material proposition of fact and law and their

denial by the other side. The applications of the plaintiffs or

defendants as such, would be required to be appreciated

accordingly and order will have to be passed. It appears that

averments in the plaint and as those appearing in the written

statement along with counter claim will have to be

re-appreciated having regard to the arguments as have been

6 WP-7208.16.doc

advanced on either side by the learned counsel. For said

purpose, the matter would be required to be remitted for

re-consideration. In the circumstances, the impugned order is

set aside.

13. Mr. M. M. Patil (Beedkar), learned counsel points out

that District Court has directed early disposal of the lis

pending between the parties, the suit and the counter claim.

14.

In view of the same, applications Exhibit-92 as well as

Exhibit-97 although there is no specific challenge to order on

Exhibit-97, be re-considered afresh by giving proper

opportunity to either side. Hopefully, the exercise would be

completed within a period of fortnight from the date of receipt

of writ of this order.

15. With aforesaid, writ petition is disposed of. Rule is made

absolute, accordingly.

16. Needless to refer to that all contentions, submissions

and objections of the parties, are kept open.

( SUNIL P. DESHMUKH, J. )

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