Damodar Dnyandeorao Sarap vs Haribhau Govindrao Pakdane And ...
2017 Latest Caselaw 6412 Bom

(Judgment) 2108  CRA 10-2017                                                                            1/9


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH AT NAGPUR.


                          CIVIL REVISION APPLICATION NO. 10/2017 




                Damodar Dnyandeorao Sarap,
                Aged about 45 years, Occu: Agriculturist,
                R/o. Mothi Hadd, Near Moreshwar Temple,
                Wadegaon, Tq. Balapur, Distt. Akola.                                PETITIONER


                                                   .....VERSUS.....


                1]   Haribhau Govindrao Pakdane, 
                      Aged about 87 years, Occu: Retired,
                      R/o. Mothi Hadd, Near Moreshwar Temple,
                      Wadegaon, Tq. Balapur, Distt. Akola.

                2]   Village Development Officer,
                       Grampanchayat Wadegaon, Tq. Balapur, 
                       Distt. Akola.                                                 RESPONDE NT
                                                                                                 S
                                                                                                   


                                Shri J.B. Gandhi, counsel for petitioner.
                                Shri R.L. Khapre, counsel for respondent no.1.
                                Shri K.P. Mahalle, counsel for respondent no.2.


                                CORAM:  S.B. SHUKRE, J.

                                DATE    : AUGUST 21, 2017.
                 

                                ORAL JUDGMENT :  

Heard. Rule. Rule made returnable forthwith

by consent of the parties.

 (Judgment) 2108  CRA 10-2017                                                                           2/9

                                2]            What   is   challenged   in   the   present   civil 

application is an order passed by the Civil Judge (Junior

Division), Balapur, District - Akola on 03/01/2017 in

R.C.S. No. 61/2016, thereby rejecting the application

filed by the petitioner, original defendant no.1, under

Order 7 Rule 11 of CPC (Exh.10).

3] Shri Gandhi, learned counsel for the applicant

submits that considering the pleadings in the plaint and

the reliefs sought, it is manifestly clear that the suit in

the present case is barred by the provisions of Section

53(2A) of the Maharashtra Village Panchayat Act (for

short, "Village Panchayat Act"), which provides for an

alternate efficacious remedy in a case where it is alleged

that the defendant has made an encroachment upon a

public property or open space or has made illegal and

unauthorized construction on his property thereby

causing inconvenience to the neighbor. He has placed his

reliance upon the view taken by the learned Single

Judge of this court in the case of Village Panchayat,

Antora through its member -Vs- W asudeo

Ramchandraji Mohod and another, 2014(5) Bom.C.R.

 (Judgment) 2108  CRA 10-2017                                                                           3/9

                                4]            Shri Mahalle, learned counsel for respondent 

no.2, original defendant no.2, supports the cause taken

up in this civil revision application by the

petitioner/defendant no.1 when he submits that Section

53(2A) of the Village Panchayat Act, being a complete

code itself, provides an alternate efficacious remedy for

redressal of the grievance raised in the present suit by

the respondent no.1, original plaintiff. He has also

placed his reliance upon with the same case law as

learned counsel for the petitioner.

5] Shri Khapre, learned counsel for respondent

no.1, original plaintiff, submits that it is not necessary

for the plaintiff in a case like this to plead in so many

words the nature of injury caused to him and it is

enough for him to plead that the construction has been

made unauthorisedly, without following the prescribed

rules and that it is causing inconvenience to him or

encroaching upon his right to privacy. In such a case, the

law is now settled, the suit is not only maintainable, but

the injury to public or even to private property holder

like respondent no.1 is presumed, so submits learned

(Judgment) 2108 CRA 10-2017 4/9

counsel for respondent no.1.

6] On going through the pleadings in the plaint,

I find that there is a great substance in the argument of

the learned counsel for respondent no.1 and there is no

substance in the argument of learned counsel for

petitioner and respondent no.2. It is well settled law that

in order to examine the issue of rejection of plaint under

Order 7 Rule 11 of CPC, on the ground of the suit being

barred by law, what is required to be seen is only the

pleadings in the plaint in their ordinary and natural

sense without adding anything to or subtracting

anything from those pleadings. It is also settled law that

it is not permissible for the court to examine such an

issue by looking into the documents which are not part

of the pleadings in the plaint. Going by these principles,

when one examines the plaint pleadings, one can easily

find that these pleadings, understood as they stand in

the plaint, do not oust the jurisdiction of the civil court.

In para no.4 of the plaint, it is specifically averred that

while raising the construction on his own plot, the

petitioner did not leave any open space on the southern

(Judgment) 2108 CRA 10-2017 5/9

as well as western side of the plot and that this

construction has resulted in closing the drainage of the

roof water flowing from the construction made by

respondent no.1. It is also pleaded that some portion of

the offending construction is penetrating the property of

respondent no.1 and it has been carried out by

demolishing the north-west corner of his house and

erecting one column at this place. There is also a

pleading to the effect that this construction made by the

petitioner has encroached upon the right to privacy of

the plaintiff.

7] Now, these pleadings when understood in

their plain and ordinary sense, convey that there is a

grievance which can be properly adjudicated upon only

by the civil court and not by any public authority as

prescribed under Section 53 of the Village Panchayat

Act. Some of the reliefs claimed in the plaint are about

permanent injunction and mandatory injunction which

could not be granted by the public authority and granted

only by a civil court.

8] In the case of Village Panchayat -Vs-

 (Judgment) 2108  CRA 10-2017                                                                             6/9

                                 W asudeo Mohod

(supra), a notice had been issued by

the Gram Panchayat for demolishing of the construction

over suit site. In order to restrain the Gram Panchayat

from acting upon this notice, a civil suit was filed by the

plaintiff in that case against Gram Panchayat and in the

backdrop of this fact it was found by this court that

alternate efficacious remedy under Section 53 of the

Village Panchayat Act was available to the plaintiff

therein and therefore it was held that the civil suit was

barred in view of the availability of the alternate

efficacious remedy expressly provided under Section

53(2A) of the said Act. In the instant case, the facts are

quite different. The facts disclose allegations of

inconvenience and injury to the right of the plaintiff i.e.

respondent no.1, to enjoy his property in accordance

with law. It is true that in the plaint pleadings nothing is

averred about the easementary rights, but as held by this

court in the case of J iwanlal Pokardas Motwani

-Vs-

State of Maharashtra and others , 2004(1) Mh.L.J.

265, in such cases, inconvenience and legal injury is a

matter of presumption and can be presumed by the

Caetano court. Similar is the ratio of the case of Fatima

(Judgment) 2108 CRA 10-2017 7/9

Joao -Vs- Village Panchayat of Merces and another ,

2000 (Supp. 1) Bom.C.R. 814, decided by the Division

Bench of this court. The facts of the case, as just

discussed, would show that they are governed by the

ratio of these two cases of J iwan lal and Fatima, and not

by the ratio of the case of Village Panchayat -Vs-

W asudeo Mohod (supra), and therefore, I find that the

plaint in the instant case cannot be rejected under the

provisions of Order 7 Rule 11 of CPC.

9] Even in the case of Hari R am

-Vs- Jyoti

P rasad and another , AIR 2011 S UPREME COURT

,

the Hon'ble Apex Court has held that, "whenever there is

a hindrance to access and movement in the road, the

wrongful act resulting therefrom is continuing one and

therefore as long as a wrong or injury is continuing, there

would be a case for filing of the suit for mandatory

injunction and for removal of encroachment". The

Hon'ble Apex Court has also held that, "even in such a

case the person who has been affected can file a suit and it

is not necessary that there should be a representative suit".

In the instant case, the injury alleged by the respondent

(Judgment) 2108 CRA 10-2017 8/9

no.1 is not in respect of something done by the

petitioner on a public road or on a public property, still

R the ratio of the case of Hari am , can be applied to the

facts of instant case. The reason being that when a civil

suit can be filed for setting right the public injury caused

by some encroachment without resorting to alternate

remedy available under Municipal or Panchayat Act, a

civil suit filed for removal of private injury resulting from

encroachment on public or other property and

infringement of building sanction can also be likewise

filed. Therefore, I do not think that the impugned order

rejecting the application filed under Order 7 Rule 11 of

CPC, can be said to be illegal or perverse.

10] There is also an argument canvassed on

behalf of the respondent no.2 that the notice as required

under Section 180 of the Village Panchayat Act, has not

been issued in this case before filing of the suit against

respondent no.2. There is no dispute about non-issuance

of notice under Section 180 of the said Act, but

considering the fact that no relief has been claimed

against respondent no.2, the notice under Section 180 of

(Judgment) 2108 CRA 10-2017 9/9

the said Act would not be required in the instant case.

Therefore, argument is rejected.

11] In the result, I find no illegality or perversity

in the impugned order. There is no merit in the

application. It deserves to be dismissed. Civil Revision

Application stands dismissed.

12] Parties to bear their own costs.

JUDGE

Yenurkar