Shri. Bholaprasad Foudar Bharti vs Smt. Kalavati Vitthalrao Khadake
2017 Latest Caselaw 9717 Bom

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.12824 OF 2017

        Bholaprasad Foudar Bharti,                                   ]
        Age : 45 years, Occupation : Painter,                        ]
        R/at C/of Shambaji Tatoba Kumbhar,                           ]
        Plot No.21, E-Ward, Sainath Housing Society,                 ]
        Tembhaiwadi, Tal. Karvir, Dist. Kolhapur.                    ] .... Petitioner
                     Versus
        Kalavati Vitthalrao Khadake,                                 ]
        Age : 50 years, Occupation : Household,                      ]
        R/at G.R. Colony, Ujlaiwadi, Tal. Karvir,                    ]
        Dist. Kolhapur.                                              ] .... Respondent


        Mr. Chetan G. Patil for the Petitioner.

        None for the Respondent.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 18 TH DECEMBER 2017.

        P.C. :

1. Heard Mr. Patil, learned counsel for the Petitioner.

2. By this Petition, filed under Article 227 of the Constitution of India,

the Petitioner is challenging the concurrent finding arrived at by the

Court of 3rd Joint Civil Judge, Junior Division, Kolhapur, vide his order

below "Exhibit-5" dated 6th July 2017 passed in Regular Civil Suit

No.438 of 2017, which is confirmed by the Court of District Judge-7,

Kolhapur, vide its order dated 19 th September 2017 passed in

Miscellaneous Civil Appeal No.192 of 2017.

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3. By the Trial Court's order dated 6th July 2017, the application filed

by the Petitioner for interim injunction restraining the Respondent from

carrying out construction over the alleged encroached portion of the

property came to be rejected and the said order is confirmed by the

Appellate Court while dismissing the Petitioner's Miscellaneous Civil

Appeal No.192 of 2017.

4. The submission of learned counsel for the Petitioner is that, the

Petitioner-Plaintiff has come before the Court with a specific case that

Respondent has made encroachment on the property owned by the

Petitioner and on the said encroached portion, she is carrying out

construction. It is urged that, it is also a matter of record that the

Respondent has not obtained any permission for carrying out

construction. However, both the Courts below have said that, even if no

such permission is obtained, it will be for the Planning Authority to take

necessary action and the Planning Authority is competent to do so; but,

there is no necessity of granting interim injunction, as sought by the

Petitioner. According to learned counsel for the Petitioner, this finding

arrived at by the Trial Court and confirmed by the Appellate Court, is

totally erroneous and not sustainable in the light of the legal position.

5. Learned counsel for the Petitioner has also relied upon various

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authorities to submit that, when a Suit is for removal of encroachment,

unless the Court Commissioner is appointed and his report is brought on

record, the exact position or situation at the site cannot come before the

Court and, till then, if the nature of the suit property is allowed to be

changed, that will cause irreparable loss and hardship to the Petitioner-

Plaintiff. Here in the case, learned counsel for the Petitioner submits

that, the Petitioner has applied for appointment of such Court

Commissioner to determine and assess the encroachment and the Trial

Court has now allowed the said application. Therefore, till the report of

the Court Commissioner is received, the Trial Court should have

restrained the Respondent from carrying out construction on the

encroached portion of the suit property.

6. The perusal of the impugned order goes to show that, both, the

Trial Court and the Appellate Court have relied upon the provisions of

Order 7 Rule 3 of the Civil Procedure Code (Bombay Amendment), which

require that, where the subject matter of the Suit is immovable property,

the plaint shall contain a description of the property sufficient to

identify it and in case such property can be identified by boundaries or

numbers in a record of settlement or survey, the plaint shall specify

such boundaries or numbers. Moreover, when the case of encroachment

is put up, its sketch showing, as approximately as possible, the location

and extent of the encroachment shall also be filed along with the plaint.

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7. In the instant case, admittedly, the Petitioner has neither shown

the area of the alleged encroachment in the plaint, nor filed along with

the plaint any sketch showing approximately possible location and

extent of the alleged encroachment. In the absence of such details and

the sketch, merely on the vague averment made by the Petitioner that

Respondent is carrying out construction by making encroachment on his

property, the case of the Petitioner can hardly be accepted. If at all the

Petitioner wanted to make out a case that Respondent has made

encroachment on his property, then, he should have got his property

measured before hand and produced the sketch or given the requisite

details as to how much portion is alleged to be encroached, on which the

construction is sought to be made. Petitioner has not done that. In such

situation, it cannot be said that the Petitioner is having any prima facie

case to restrain the Respondent from carrying out construction over the

property which, according to the Respondent, belongs to her and which

is yet not proved to be an encroached portion.

8. It was also necessary for the Petitioner to apply for appointment of

the Court Commissioner before pressing for this application for interim

injunction or to get his land measured before filing of the Suit. Now,

after his application is rejected by the Trial Court, when he has filed the

application for appointment of a Court Commissioner and that

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application is allowed, that does not mean that, prima facie, the

Petitioner has proved that the construction carried out by the

Respondent is on the area owned by him and encroached by the

Respondent. Therefore, when, at this stage, there is nothing on record to

show that the Respondent has carried out construction by making

encroachment on the land of the Petitioner, then, if the relief of interim

injunction is granted restraining the Respondent from proceeding with

the said construction, it goes without saying that, the Respondent will

suffer irreparable loss and hardship and not the Petitioner. Both the

Courts below have properly considered these aspects and rightly

rejected the Petitioner's application for interim injunction.

9. The main grievance of the learned counsel for the Petitioner is on

the fact that, the Respondent has not produced on record a single

document to show that she has obtained requisite permission of the

Planning Authority, namely, the Gram Panchayat, to carry out such

construction. The observations made by the Trial Court in paragraph

No.12 of its order are pointed out in this respect to show that, the

Respondent has not brought on record any document to show that she

has obtained permission for carrying out the construction either from

the Gram Panchayat or from the Town Planning Authority. It is urged

that, the Trial Court has, despite that, refused the relief of interim

injunction to the Petitioner on the ground that, if Respondent is carrying

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out such construction without permission, it will be only at the risk of

the Respondent and Gram Panchayat and the concerned Town Planning

Authority can take effective steps against the construction of the

Respondent, in case the construction is carried out without requisite

permission. According to learned counsel for the Petitioner, these

observations and findings made by the Trial Court and confirmed by the

Appellate Court, cannot be upheld in law.

10. To substantiate this submission, learned counsel for the Petitioner

has relied upon the Judgment of Madhya Pradesh High Court in the case

of Cantonment Board, Sagar Vs. Sudhanshu, 1998 DGLS(M.P.) 428 .

However, the facts of the said case reveal that, in that Suit, the

Cantonment Board, which was the competent Town Planning Authority,

was the Plaintiff, who has filed Suit for injunction restraining the

Defendant from carrying out illegal construction. The Trial Court

rejected the same and Appellate Court confirmed the said order holding

that, the Cantonment Board is competent to take necessary action as it

is having statutory powers. In that background, it was held that, both

the Courts below have misdirected themselves in observing that, as the

Cantonment Board, which was the Plaintiff, is entitled under its

statutory powers, no injunction in favour of such an Authority can be

granted. However, if one considers the facts of the present case, it is not

the Planning Authority like the Gram Panchayat, which is coming before

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the Court contending that the construction undertaken by the

Respondent is illegal, unauthorized or without permission; but, it is the

Petitioner who is alleging the same and in such situation, this case law

cannot be of any help to the Petitioner.

11. Learned counsel for the Petitioner has then placed reliance on the

Judgment of the Supreme Court in the case of Maharwal Khewaji Trust

(Regd.), Faridkot Vs. Baldev Dass, (2004) 8 SCC 488. However, again

facts of the said case clearly reveal that the Plaintiff therein was proved

to be the owner of the premises, on which Respondent was carrying out

illegal construction. Here in the case, the Petitioner has yet to prove that

the portion on which the Respondent is carrying out construction is

encroached one or it does not belong to the Respondent. In such

situation, this Judgment also cannot be of any assistance to the

Petitioner.

12. Learned counsel for the Petitioner has also relied upon the

Judgment of the Calcutta High Court in the case of Krishna Kali Mallik

Vs. Babulal Shaw and Ors., AIR 1965 Calcutta 148 . In that case, again

the facts show that, the Plaintiff was the neighbour of Defendant and he

noticed that Defendant was constructing his building in violation of

Municipal Statutory Rules. In that background, it was held that the

Plaintiff has a right to sue Defendant and ask for an injunction. Here in

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the case, there is nothing on record to show that the construction, which

Respondent has undertaken, is in violation of Gram Panchayat's

Statutory Rules or it is totally an illegal and unauthorized construction.

13. In such situation, merely because the Respondent has not

produced on record the alleged permission and, that too, when Gram

Panchayat itself is not challenging the same, it cannot be said that the

construction undertaken by the Respondent is in violation of the

Statutory Rules.

14. What Petitioner has to, prima facie, prove in this case was that the

construction is undertaken on the encroached portion and for that

purpose, he has to prove that there was encroachment made by the

Respondent. Apparently, the Petitioner has failed to prove the same as

he has neither given the description of the suit property in detail, nor

attached the sketch of the encroached portion, or, got his land measured

prior to filing of the Suit.

15. Hence, at this stage, no interference is warranted in the impugned

order passed by the Trial Court and confirmed by the Appellate Court.

The Writ Petition, therefore, being without merits, stands dismissed.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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