Bombay High Court
Shri Pandurang S/O Ashruji ... vs Shri Haribhau S/O Baliram ... on 11 March, 2016
Bench: Ravi K. Deshpande
ao92.15.J.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.92 OF 2015
1] Shri Pandurang s/o Ashruji Sarnaik
Aged about 62 years,
Occ: Agriculturist.
2] Shri Vinayak s/o Pandurang Sarnaik
Aged about 46 years,
Occ: Agriculturist.
Both R/o Near Vitthal Mandir Temple,
Old City, Akola, Tq. & Dist. Akola. ....... APPELLANTS
...V E R S U S...
Shri Haribhau s/o Baliram Gondchawar (Marathe),
Aged about 68 years, Occ: Retired/Agriculturist,
R/o Damle Marg, Ramdaspeth, Akola,
Tq. & Dist. Akola. ....... RESPONDENT
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Shri P.P. Deshmukh, Advocate for Appellants.
Shri S.S. Sarda, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2016.
DATE: 11
ORAL JUDGMENT
1] This appeal challenges the order dated 01.09.2015 passed
by the learned Principal District, Akola in Regular Civil Appeal No.77 of
2015 granting prayer in terms of the order of Tahsildar/Mamlatdar, and
the appellant - respondents are restrained from creating obstructions.
ao92.15.J.odt 2/6
The operative portion of the order of injunction passed by the learned
Principal, District Judge, Akola, is reproduced below:
Till decision of the appeal the injunction as prayed in
terms of the order of Tahsildar/Mamlatdar is granted and the
respondents are restrained from creating obstructions.
The original defendants are before this Court challenging the aforesaid
order.
2] Notice for final disposal of the matter was issued on
20.10.2015, and the parties were directed to maintain status-quo.
The matter is now heard finally by consent of the learned counsels
appearing for the parties.
3] In Regular Civil Suit No.70 of 2012 the respondent -
plaintiff claimed the relief as under:
1] Pass a decree in favour of Plaintiff by which the Defendants be
directed to execute the Sale deed of the suit property as per
agreement.
ao92.15.J.odt 3/6
2] If the Hon'ble court comes to the conclusion that the Plaintiff
is not entitle for decree of specific performance i.e. to get the
sale deed from the Defendants of the suit property in that
event, it be declared that the suit property is the approach
road of the Plaintiff as per the provisions of Easement Act and
pass a permanent injunction in favour of Plaintiff by which
Defendants are permanently restrain from not to obstruct the
approach road of the Plaintiff in any mode and manner by
himself, relatives, agents in any manner permanently.
3] And the Plaintiff in alternate prayed that if the Hon'ble Court
comes to the conclusion that the Plaintiff is not entitled for
specific performance in terms of prayer clause [1] in that
event the Defendants be directed to refund the purchase price
of the land of Rs.33,000/- along with damages of Rs.25,000/-
as claimed and mentioned in the suit along with interest
thereon at the rate of 6% per annum from the date of suit till
its actual realization.
4] Plaintiff also prayed that to pass a money decree of
Rs.1,67,000/- independently in favour of Plaintiff and against
the Defendants, alongwith interest thereon at the rate of 18%
per annum from the date of suit till its actual realization.
ao92.15.J.odt 4/6
5] Any other relief which this Hon'ble Court Deems fit and proper
may kindly be granted in favour of Plaintiff with costs of the
present suit.
4] The trial court has partly decreed the suit on 07.07.2015,
and the operative portion of the judgment is reproduced below:
1] Suit is partly decreed with proportionate costs.
2] Prayer of plaintiff for specific performance of contract,
declaration and permanent injunction is hereby rejected.
3] Plaintiff is entitled to get money decree of Rs.2,00,000/-
(Rs. Two lakhs only) along with future interest at the rate of
8% per annum on decretal amount from the date of filing of
suit till its actual realization.
5] In the Regular Civil Appeal No.77 of 2015 preferred by the
plaintiff an application for temporary injunction was filed claiming the
order of temporary injunction as under:
1) The Hon'ble Court is pleased to allow the application by
which non applicant no. 1 and 2 may kindly be restrained
from creating obstruction for using the approach road by the
ao92.15.J.odt 5/6
applicant from the western side boundary of the non applicant
lands S.No. 46/1 for which the Tahsildar has been restrained
to the applicant from creating obstruction to the use of the
said approach road of the applicant and not to restrain the
applicant by the non applicant from using the said road by
himself, agents, servants, relatives, his laborers and any other
person engaged by him, till the decision of this appeal.
2)
igAd interim ex-parte order of stay be passed in favour of
applicant, in the interest of justice.
6] The trial court has recorded the finding that the plaintiff has
failed to prove that he has approach road to reach his Survey No.46/1
from the western side of the land of the defendants. The finding is also
recorded that oral agreement dated 06.05.2010 to execute the sale-deed
in respect of suit land admeasuring 6.5 gunthas for consideration of
Rs.33,000/- has also not been proved. The finding is recorded that the
plaintiff has proved that he has paid an amount of Rs.2 lacs to the
defendant on 18.12.2009. The claim of the plaintiff for specific
performance of contract has also been rejected. The finding is also
recorded that the plaintiff is not entitled to declaration in respect of his
easementary right.
ao92.15.J.odt 6/6
7] On prima facie assessment of the case, it seems that there is
a mis-joinder of causes of action. In the suit for specific performance of
contract there was no question of claiming easementary right over the
suit land. Though, the order of the Tahsildar in respect of right of way
was operating, that does not constitute any cause of action for the
plaintiff to claim such a relief in the suit in question. The plaintiff is at
liberty to file a separate suit for any such claim, if permissible, in
accordance with law. The order of injunction passed by the lower
Appellate Court cannot be sustained, as it travels beyond the cause of
action for filing the suit for specific performance of contract.
8] In the result, the appeal is allowed. The order dated
01.09.2015 passed by the learned Principal, District Judge, Akola in
Regular Civil Appeal No.77 of 2015 is hereby quashed and set aside.
The application at Exh.5 is rejected. No order as to costs.
JUDGE
NSN
