Shivaji Trimbak Suradkar vs Shalikram S/O Shenfad Shurdkar
2016 Latest Caselaw 3473 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                                     
                                 NAGPUR.

                     WRIT    PETITION     NO.   6851     OF     2015




                                                             
    Shivaji Trimbak Suradkar,




                                                            
    age 41 yrs. Occu.Agriculturist,
    R/o Gondhkhed, Post Madh,
    Distt. Buldhana.                                                      PETITIONER.




                                              
                                              VERSUS
                             
    Shalikram Shenfad Shurdkar,
    age 60 yrs. Occu.Agriculturist,
                            
    R/o  Gondhkhed, Post Madh,
    Distt. Buldhana.                                                      RESPONDENT.

Shri S. R. Deshpande, Advocate for the petitioner.

Shri R. L. Khapre, Advocate for the respondent.

                                     CORAM:     A. S. CHANDURKAR  J.
                               
                                      Dated    :   JUNE  29, 2016.





    ORAL JUDGMENT: 

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

parties have been heard at length.

2] The petitioner who is the original plaintiff is aggrieved by the

order passed by the appellate Court thereby setting aside the order of

injunction passed in his favour.

3] The petitioner is the original plaintiff who claims to own 0.41 R

land from gat no. 11. It is his case that initially the plaintiff had got 1 acre 25

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R land as half share while the remaining half share was allotted to the

respondent. According to him in June 2015 an obstruction was caused by the

respondent and hence aforesaid suit for permanent injunction came to be

filed. The trial Court by order dated 29.09.2015 allowed the application for

temporary injunction. This order however was set aside in the appeal filed by

the respondent.

4] Shri S. R. Deshpande, the learned counsel for the petitioner

submitted that the appellate Court allowed the appeal merely on the ground

that the measurement report was not placed on record by the petitioner. He

submitted that as per the 7/12 extracts of the land in question, the petitioner

was in possession of 0.41 R of land after selling 0.84 R land. He submitted

that the appellate Court without considering the findings recorded by the

trial Court gave much weightage to the fact that the measurement report was

not brought on record by the petitioner. He therefore submitted that the

order passed by the trial Court deserves to be restored.

Shri R. L. Khapre, the learned counsel for the respondent

supported the impugned order and relied upon the measurement map that

was prepared pursuant to the application moved by the petitioner himself.

He submitted that as this measurement report was not in favour of the

petitioner, the same was not brought on record. He submitted that as per the

statement of the petitioner the boundaries of his land were not fixed and

until said aspect was verified the petitioner was not entitled for any order of

injunction.

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5] I have perused the documents placed on record. The same

indicate that out of land admeasuring 1 H 25 R, 0.84 R was sold by the

petitioner and he was left with 0.41 R land. The record indicates that on

01.10.2014 the petitioner had applied for measurement of the field in

question and his statement in those proceedings was recorded. The

petitioner stated that the boundaries of his field had not been fixed. Thus on

one hand there are 7/12 extracts indicating the ownership of the petitioner to

the extent of 1 H 25 R. while there is also a statement that boundaries of his

field had not been fixed. The question with regard to the exact area that is in

possession of the petitioner will be a matter to be decided by the trial Court

after recording evidence. It is found that the trial Court passed an order of

injunction on 29.09.2015 which was set aside on 25.11.2015. This Court

while issuing notice on 18.12.2015 directed the parties to maintain status

quo as on said date. Hence, instead of entering into the dispute with regard

to the actual area in possession of the parties, in the facts of the present case

the interests of justice would be met by directing the trial Court to decide the

civil suit expeditiously and by continuing the order of status quo which was

passed on 18.12.2015 in the Writ Petition. Thus by clarifying that the

observations made by the trial Court or by the appellate Court while

considering the injunction application would not come in the way of parties

when the suit is decided, the proceedings in Regular Civil Suit No. 207 of

2015 are expedited. The said suit shall be decided by the end of December

2016. Without prejudice to the rights of the parties, the order of status quo

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dated 18.12.2015 shall continue to operate during pendency of the suit. The

Writ Petition is disposed of in aforesaid terms. No costs.

JUDGE svk

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