Abdul Hamid Abdul Karim Shaikh And ... vs Shivaji Pandharinath Peche And ...
2017 Latest Caselaw 3949 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                     BENCH AT AURANGABAD

                        WRIT PETITION NO.9882 OF 2016

1. Abdul Hamid s/o Abdul Karim Shaikh,
    Age-54 years, Occu-Agriculture,

2. Sumaiyya Abdul Shaikh,
    Age-46 years, Occu-Agriculture,

Both r/o Shahagad, Tq.Ambad,
Dist. Jalna                                              -- PETITIONERS 


VERSUS 


1. Shivaji s/o Pandharinath Peche,
    Age-60 years, Occu-Retired,

2. Taibai w/o Shivaji Peche,
    Age-56 years, Occu-Agriculturist 
    and Household,

3. Sachin s/o Shivaji Peche,
    Age-46 years, Occu-Agriculture,

All R/o Shahagad, Tq. Ambad,
Dist. Jalna                                              -- RESPONDENTS 

Mr.G.R.Syed, Advocate for the petitioners. Mr.S.S.Thombre, Advocate for respondent Nos.1 to 3.

( CORAM : Ravindra V.Ghuge, J.)

DATE : 04/07/2017 ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

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2. The subject matter of this petition assumes importance as it

pertains to the basic necessities of mankind in relation to

constructing a wash room (toilet) and using the same.

3. By an order dated 15/10/2015, the Trial Court allowed

application Exh.5 filed by the petitioners/plaintiffs in RCS

No.169/2015 and directed the respondents/defendants not to

obstruct the peaceful possession of the plaintiffs and not to construct

a wash room (toilet) over the suit property situated in front of the

plaintiffs' house. For the sake of clarity, the operative part of the

order dated 15/10/2015 is reproduced as under :-

"1. The plaintiffs' application below Exh.5 is hereby allowed.

2. The defendants are hereby directed not to obstruct plaintiffs' peaceful possession over suit property more particularly described as Grampanchayat House No.852, admeasuring 1457 Sq.ft and house No.854 admeasuring 990 Sq.ft situated at Shahagad, Tq.Ambad, District Jalna and not to construct toilet over suit property which is situated in front of plaintiffs' house and also not to close the drainage line flow which passes through this vacant space by themselves or through their agents, servants or relatives by temporary injunction till the final decision of present suit.

3. Costs in cause."

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4. Needless to state, the grievance of the plaintiffs is that the

defendants intend to construct a wash room (toilet) beyond their

property and which is likely to be erected right in front of the front

door of the plaintiffs' house. Considering the dispute between the

parties and the contention of the defendants that they do not have

the wash room (toilet) from 1997, the Trial Court restrained the

defendants from constructing a wash room (toilet) in front of the

plaintiffs' house. Needless to state, the directions of the Trial Court

can be interpreted to mean that the defendants can construct a wash

room (toilet) within their own property and neither on any disputed

property nor on the land belonging to the Gram Panchayat.

5. The Appeal Court, while entertaining the Misc. Appeal filed by

the defendants, concluded at a prima facie stage that the land

opposite the front door of the plaintiffs' house which is commonly

described in this part of the State as "Aangan in Marathi", does not

belong to the plaintiffs. Mr.Thombre strenuously asserts on

instructions from the defendant present in the Court that if the

'Aangan' does not belong to the plaintiffs, then it surely belongs to

the defendants.

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6. He has based his contentions on a registered sale deed between

him and his vendor who was the predecessor in title. Countering

this submission, Mr.Syed, learned Advocate for the plaintiffs submits

that the earlier Vendor has handed over that 'Aangan' to the plaintiffs

and therefore the same belongs to the plaintiffs. There is no dispute

that this aspect is also a subject matter of the suit.

7. Learned Advocate for the plaintiffs submits that they do not

have any intention to obstruct the Gram Panchayat if it lays a

drainage line in the land belonging to the Gram Panchayat as long as

it is an under ground sewage drainage line. Plaintiffs also do not

oppose erection of a wash room (toilet) by the defendants within their

own land to which they have a title. Plaintiffs further state that if

there is any open drainage line meant for rain water and not with

regard to a sewage line, any block in such line around the front door

of the plaintiffs' house will be opened and cleared at their own costs.

8. Learned Advocate for the defendants submits that they don't

intend to occupy the land belonging to the Gram Panchayat. There

will be no encroachment on the Gram Panchayat land. They would

also not block any drainage line of the Gram Panchayat and would

not construct a wash room (toilet) on the land either belonging to the

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plaintiffs or the Gram Panchayat. Presently, there is no construction

erected.

9. It is, in the peculiar facts as stated above, that I deem it

appropriate to direct the litigating sides to maintain status-quo, with

a direction to the Trial Court to decide RCS No.169/2015

expeditiously. This Court is normally slow in expediting the suits

before the Lower Courts and especially when the suits are less to 5-7

years old. However, since the issue involved in this matter pertains to

the wash room (toilet) which the defendants desperately need to

construct, I am directing the expeditious disposal of the suit.

10. This petition is, therefore, disposed of with the following

directions :-

[a] The statements made by the plaintiffs and the defendants set out in paragraph Nos.7 and 8 are recorded as statements made to the Court and the litigating sides are directed to maintain status-quo as on date.

[b] The plaintiffs would file an application for appointment of the Court Commissioner within 3 (three) weeks from today and the defendants will not oppose the said application. [c] The Trial Court would allow the application for appointing the Court Commissioner and would issue directions to the Court Commissioner for inspecting the suit land and the properties of

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the plaintiffs as well as the defendants by conducting a joint measurement on a particular date as would be mentioned by the parties before the Trial Court.

[d] The Court Commissioner would draw a proper map, fix the boundaries and demarcate the lands belonging to the plaintiffs and the defendants and if possible, suggest the place at which a wash room (toilet) can be erected by the defendants on their own property without causing a hindrance to the plaintiffs or the public at large.

[e] Needless to state, any grievance by the litigating sides about the map and the report of the Court Commissioner shall be entertained by the Trial Court in accordance with Law. [f] RCS No.169/2015 shall be decided expeditiously by giving preference to the said matter in the light of the issue involved and the same shall be disposed of on or before 29/12/2017. [g] The litigating sides shall be precluded from seeking adjournments on frivolous and trivial grounds and the Trial Court may impose costs if such instances are noticed.

10. In this view of the matter, writ petition is partly allowed and

rule is made partly absolute in the above terms.

( Ravindra V.Ghuge, J.)

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