Shri. Vilas Laxman Patil vs Shri. Ananda Laxman Patil And Ors
2017 Latest Caselaw 9730 Bom

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

                               WRIT PETITION NO.13313 OF 2017

        Vilas Laxman Patil                                           ]
        Age : 66 years, Occ. Agriculturist,                          ]
        R/of Bugadikatti, Tal. Gadhinglaj,                           ]
        District Kolhapur.                                           ] .... Petitioner
                      Versus
        1. Ananda Laxman Patil                                       ]
           Age : 68 years, Occ. Agriculturist,                       ]
           R/of Bugadikatti, Tal. Gadhinglaj,                        ]
           District Kolhapur.                                        ]
                                                                     ]
        2. Suryaji Laxman Patil                                      ]
           Age : 62 years, Occ. Agriculturist,                       ]
           R/of Bugadikatti, Tal. Gadhinglaj,                        ]
           District Kolhapur.                                        ]
                                                                     ]
        3. Netaji Laxman Patil                                       ]
           Age : 63 years, Occ. Agriculturist,                       ]
           R/of Bugadikatti, Tal. Gadhinglaj,                        ]
           District Kolhapur.                                        ] .... Respondents


        Mr. Manoj A. Patil for the Petitioner.

        Mr. G.N. Salunke, i/by Mr. Vinayak Phadake, for the Respondents.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 18 TH DECEMBER 2017.

        ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Patil, learned counsel for the

Petitioner, and Mr. Salunke, learned counsel for the Respondents.

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

the Petitioner is challenging the order dated 17 th May 2017 passed by

the District Judge-1, Gadhinglaj, thereby allowing the Miscellaneous

Civil Appeal No.9 of 2017. The said Appeal was preferred by the Original

Plaintiff, i.e. Respondent No.1 herein, challenging the order dated 10 th

February 2017 passed by the Court of 2 nd Joint Civil Judge, Junior

Division, Gadhinglaj, Taluka Gadhinglaj, District Kolhapur, below

application "Exhibit-5" filed in Regular Civil Suit No.121 of 2015. The

said application was filed for interim injunction restraining the present

Petitioner, i.e. Original Defendant, from causing any obstruction to the

possession of Respondent No.1-Plaintiff over the suit property.

3. The case of the Respondents is that, the suit property is originally

belonging to the joint family and by virtue of the partition effected by

their father, the parties having their separate possession and cultivation

over the said properties. However, on 17 th June 2015, Defendant No.1

sowed 'Soyabin' in some portion of the suit property and thereby

obstructed the Respondent No.1's possession over the remaining

property and hence, as he has apprehension of dispossession from the

suit property at the hands of the Petitioner, he filed a suit, simplicitor,

for injunction along with the application for interim injunction.

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4. This Suit and application for interim injunction came to be resisted

by the Petitioner vide his written statement and say below Exhibit-23

contending, inter alia, that, as per the partition effected by the father,

the joint family properties are in respective possession of the Petitioner

and Respondent No.1. He has not made any encroachment over the

properties, which have gone to the share of the Plaintiff and, therefore,

there was no question of granting any relief of interim injunction.

5. The Trial Court, after considering the material on record and the

submissions advanced at bar, held that, there was no dispute about

ownership over the suit property; however, there was dispute about

possession over respective shares of the properties. It was held that,

whether Petitioner has made encroachment on the property in

possession of the Plaintiff and thereby causing obstruction to the

Plaintiff, can be decided only after thorough inquiry and for that purpose

trial is necessary. It was further held that, the material brought on

record was not sufficient to decide the sides and boundaries of the

respective shares of Petitioner and Respondent No.1. The Trial Court

thus held that, if the application is allowed at this stage, it would amount

to granting final relief to Respondent No.1 and, that too, without inquiry

and trial and hence, the Trial Court has rejected the Respondent No.1's

application for interim injunction.

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6. When the matter was taken up before the Appellate Court by

Respondent No.1, the Appellate Court held that, as the respective

possessions and the fact that the property was already partitioned by

the father is not disputed, it is necessary to restrain the Petitioner from

causing obstruction to the possession of Respondent No.1 and,

accordingly, the Appellate Court allowed the Appeal.

7. After hearing submissions advanced at bar by learned counsel for

the Petitioner and Respondents in this Writ Petition, it can be seen that,

though both the parties are not disputing the fact that the father has

effected partition of the ancestral properties and they are in respective

possessions of the shares allotted to them, now it is Respondent No.1,

who is coming before the Court and stating that the Petitioner has, with

an intention to commit encroachment and extract the land which has

gone to the share of Respondent No.1, sowed ' Soyabin' crop in some

portion of his land. There are clear averments to that effect in paragraph

Nos.5 and 6 of the plaint and application. It is also further stated that,

Respondent No.1 has confronted to the Petitioner as to how he has

sowed 'Soyabin' in the land allotted to the share of Respondent No.1.

Thus, the case put up by Respondent No.1 is that, the Petitioner has

already made some encroachment on the land in his possession by

sowing the 'Soyabin' crop and, therefore, he has apprehension of further

encroachment and dispossession at the hands of the Petitioner.

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8. Thus, when Respondent No.1 is coming before the Court with a

case of encroachment, the proper remedy for him was to get the suit

land measured and to point out, at the time of filing of the Suit itself, in

the plaint that this much portion of the land is already encroached by

the Petitioner and, therefore, there is apprehension and that

apprehension is reasonable that the Petitioner may further encroach

and dispossess him from the suit land. However, the Plaintiff has not

done so. He has filed a Suit simplicitor for injunction and on the vague

averment that, the Petitioner is likely to commit encroachment on his

property, he is restraining the Petitioner from doing so. Thus, it is clear

that under the garb of seeking the relief of interim injunction, there is

every likelihood that, Respondent No.1 will not allow the Petitioner to

cultivate his own land and that cannot be permitted, unless Respondent

No.1 shows that there is some substance in his contention that

Petitioner is trying to encroach on his land and he has already

committed such encroachment by sowing 'Soyabin'. Respondent No.1

has not done any of these things and, therefore, it is clear that, on the

pretext of seeking such apparently innocuous relief of interim

injunction, he is creating obstruction in the possession of the Petitioner

over his own land. The learned Appellate Court has, however, not

considered this material aspect of the case and as a result, the discretion

exercised by the Trial Court judiciously on factual aspects is

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unnecessarily disturbed, without recording the finding that order passed

by the Trial Court is illegal or perverse. The impugned order, therefore,

passed by the Appellate Court being without merits, needs to be set

aside.

9. The Writ Petition is, accordingly, allowed. The impugned order

passed by the Appellate Court on 17 th May 2017, in Miscellaneous Civil

Appeal No.9 of 2017, is set aside and the order passed by the Trial Court

on 10th February 2017, below Exhibit-5 in Regular Civil Suit No.121 of

2015, is restored.

10. At this stage, learned counsel for Respondent No.1 requests that

status-quo be maintained and Trial Court be directed to expedite the

trial. Learned counsel for the Petitioner has strongly opposed the said

prayers.

11. In view of the disposal of the Writ Petition, there is no question of

granting or maintaining the status-quo. Hence, the prayer to that effect

is rejected.

12. Rule is made absolute in the above terms.

[DR. SHALINI PHANSALKAR-JOSHI, J.]

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