Bombay High Court
Mahesh S/O Dhamkan Yadav And ... vs The Nagpur Improvement Trust ... on 20 December, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No. 1784/2015
1] Mahesh S/o Dhamkan Yadav,
Aged about 35 years, Occ. Business
2] Dinesh S/o Dhamkan Yadav,
Aged about 35 years, Occ. Business,
Both petitioner Nos. 1 and 2 Residents
of Corporation House No. 2186/A,
Ward No. 57, Kapil Nagar Square, Nari Road,
Nagpur, Tahsil and District Nagpur ....PETITIONERS
...V E R S U S...
1] The Nagpur Improvement Trust,
through its Chairman, having its office
at Kingsway, Sadar, Nagpur
2] The Divisional Officer,
Vaishali Nagar, North Division,
Nagpur Improvement Trust, having its
office at Vaishali Nagar, Nagpur
3] Smt. Gyandevi W/o Jankiprasad Yadav,
Aged about 45 years, Occ. Household,
Resident of Gram Sura, Tahsil Raj Nagar,
District Chattarpur (M.P.) ....RESPONDENTS
=====================================
Shri H.S. Chitaley, Advocate for the petitioners
Shri M.V. Samarth, Advocate for the respondent no. 1
=====================================
CORAM:- Z.A. HAQ,J.
DATED :- 20 December, 2017
th
ORAL JUDGMENT :-
Heard.
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Rule. Rule made returnable forthwith.
2] The petitioners (original plaintiffs) have filed the civil suit
praying for decree for declaration that they are entitled for the
peaceful possession of the suit property and the suit structure and they
are entitled for getting the suit property regularized as per the
application submitted by them on 29/07/2002, and in view of various
resolutions as stated in the prayer clause of the plaint. The plaintiffs
have prayed for other reliefs. In this civil suit, the plaintiffs had filed an
application under Order 39 Rules 1 and 2 read with Section 151 of the
Code of Civil Procedure praying for an order of temporary injunction
restraining the defendants from interfering with their peaceful
possession over the suit property. The defendants opposed the claim of
the plaintiffs. By the order passed on 18/11/2009, the trial Court
recorded that the plaintiffs are entitled for temporary injunction as
prayed for by them and allowed the application filed by them. This
order was challenged by the respondent nos. 1 and 2 before the District
Court in appeal under Order 43 Rule 1 (r) of the Code of Civil
Procedure, which is allowed by the impugned order.
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3] The learned District Judge has observed that the property in
question is acquired by the Government as per the award dated
13/02/1973 and the pleadings show that the possession of the entire
land was taken over by the Special Land Acquisition Officer and
handed over to the Nagpur Improvement Trust on 16/01/1974 and
then the plots were carved out and allotted to the persons falling in the
economically backward zone and those persons occupied the respective
plots allotted to them in 1990. With these observations, the learned
District Judge allowed the appeal filed by the present respondent nos.
1 and 2 and set aside the order passed by the trial Court and rejected
the application filed by the plaintiffs praying for temporary injunction.
4] The learned advocate for the petitioners-plaintiffs has
pointed out that the suit property comprises of a structure bearing
Corporation House No. 2186/A, admeasuring 2000 square feet
standing on the land forming a part of Khasra No. 159 of mouza Nari,
admeasuring 1500 square meters in Ward No. 57, Kapil Nagar Square,
Nari Road, Nagpur. In para 13 of the reply which was filed by the
respondent nos. 1 and 2 before the trial Court to oppose the prayer of
the plaintiffs for grant of temporary injunction, the respondent nos. 1
and 2 pleaded as follows:-
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"The contents that the Nagpur Improvement
Trust has high-handedly issued notice, are specifically
denied. It is submitted that after issuance of the notice, the
Nagpur Improvement Trust has implemented the said
notice and has removed the encroachment of shops on
7.9.2009 and 8.9.2009 i.e. prior to service of the M.C.A.
No. 629/2009. Rest of the contents of these paras are
nothing but repetition and hence, need no comments. It is
submitted that, as mentioned above, the Nagpur
Improvement Trust has implemented the notice and has
removed the shops. However, on the request of the
plaintiffs that they will remove the encroachment by
themselves within three days and on the humanitarian
ground, the Nagpur Improvement Trust granted time for
removal of habitable encroachment. It is submitted that
the plaintiffs are using the premises for keeping the cattles
thereby causing great nuisance and pollution to the nearby
residents. The entire area has been polluted because of cow
dungs. Now, when the plaintiffs themselves have made
commitment for removal of encroachment by themselves,
they are now estopped from alleging against the Nagpur
Improvement Trust. Again on 1.10.2009, as the plaintiffs
failed to remove the encroachment as per the commitment
given by them, the defendants visited the spot and found
that the encroachment is still there and hence, the officials
of the Nagpur Improvement Trust tried to remove the same
and the plaintiffs again requested for further three days'
time for removal of the same."
These pleadings, prima facie, show that the plaintiffs
were in possession of the structure admeasuring 2000 square feet
at the time of filing of the civil suit. From the record, it appears
that the plaintiffs continued to be in possession however, except
for possession over the structure admeasuring 2000 square feet,
the plaintiffs have not been able to show that possession of other
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land is with them.
5] In the above facts, I am of the view that possession of
the plaintiffs over the structure admeasuring 2000 square feet,
described in the plaint, is required to be protected till the decision
of the civil suit.
Hence, the following order is passed:-
O R D E R
1] The respondents-defendants are restrained
from interfering with the possession of the petitioners-
plaintiffs over the structure admeasuring 2000 square
feet as described in the plaint, till the decision of the
civil suit.
2] The prayer of the petitioners-plaintiffs for
an order of temporary injunction restraining the
defendants from interfering with the remaining
portion of the land is rejected.
The impugned order is modified accordingly.
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The writ petition is disposed in the above terms. In the
circumstances, the parties to bear their own costs.
It is clarified that the above observations/findings are for
the purposes of deciding the claim of the petitioners-plaintiffs for grant
of temporary injunction. The right of the petitioners-plaintiffs to
continue in possession over the structure admeasuring 2000 square
feet is not examined by this Court and it will be open for the trial Court
to decide this issue on merits.
As the civil suit is of 2009, the trial Court shall dispose the
civil suit till 05/05/2018.
JUDGE
A n s a r i
