Suryakant S/O Shrirampant Pawar ... vs Pravin Narayanrao Warhekar And ...
2017 Latest Caselaw 281 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 WRIT PETITION NO. 861 OF 2017


 Suryakant s/o Shrirampant Pawar,
 through Power of Attorney Holder
 Sandip Ashok Bobade,
 Age 34 years, Old City, Badnera, 
 Amravati.                                                      ....       PETITIONER


                     VERSUS


 1) Pravin Narayanrao Warhekar,
     Aged about 42 years, 
     Occupation - Police in Railway, 
     R/o Malipura, Old City, Badnera,
     Amravati.

 2) Municipal Corporation of City of
     Amravati, through its Commissioner, 
     Amravati.

 3) Assistant Director of Town Planning,
     Amravati Municipal Council, Amravati.                      ....       RESPONDENTS

 ______________________________________________________________

           Smt. S.W. Deshpande, Advocate for the petitioner, 
         Shri K.S. Narwade, Advocate for the respondent No.1,
        Shri J.B. Kasat, Advocate for the respondent Nos.2 and 3.
  ______________________________________________________________


                               CORAM : Z.A. HAQ, J.

DATED : 1 MARCH, 2017.

                                             st





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 ORAL JUDGMENT : 

Heard Smt. S.W. Deshpande, Advocate for the petitioner,

Shri K.S. Narwade, Advocate for the respondent No.1 and Shri

J.B. Kasat, Advocate for the respondent Nos.2 and 3.

2. Rule. Rule made returnable forthwith.

3. The plaintiff has filed this petition challenging the

judgment passed by the District Court by which the appeal filed by the

petitioner/plaintiff under Order XLIII Rule 1(r) of the Code of Civil

Procedure is dismissed and the order passed by the trial Court rejecting

the application filed by the plaintiff under Order XXXIX Rules 1 and 2

of the Code of Civil Procedure is maintained.

4. The plaintiff and the defendant No.1 are neighbours.

According to the plaintiff, earlier he was using the way through the

centre of the plot of the defendant No.1 to approach his property from

southern side, however, subsequently the defendant No.1 made

available a 3 meters wide way from the eastern side of his plot to

approach the property of the plaintiff. According to the plaintiff, the

sewerage line of the plaintiff's property passes through the centre of

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the defendant's plot. It is the case of the plaintiff that as the defendant

No.1 has now started construction over his plot, the right of the

plaintiff will be affected and therefore, the plaintiff has filed the civil

suit praying for decree for permanent injunction against the defendant

No.1. In the civil suit, the plaintiff filed an application praying for

temporary injunction restraining the defendant No.1 from undertaking

the construction over his plot till disposal of the civil suit. This

application is rejected by the subordinate Courts.

5. According to the defendant No.1, the plaintiff is having

approach way from northern side, the road running east-west. The

defendant No.1 has denied the claim of the plaintiff regarding 3 meters

wide road from eastern side from the property of defendant No.1. As

far as the claim of the defendant No.1 about sewerage line is

concerned, the defendant No.1 has submitted that he will be taking

steps to merge the sewerage line of the plaintiff's property with the

sewerage line of property of the defendant No.1

6. The Advocate for the petitioner/plaintiff has pointed out

the pleadings of defendant No.1 in paragraph No.8 of the reply filed by

him to the application praying for temporary injunction. The

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defendant No.1 has admitted that he allowed the plaintiff to use 3 feet

space for ingress and egress from eastern side of his property

temporarily. The defendant No.1 has denied that the plaintiff has

easementary right to use that way to approach his property.

7. Considering the facts of the case, specially that even

according to the defendant No.1, he will have to leave 1.5 meters open

space on the eastern side of the property, in my view, the impugned

judgment and order are required to be set side and the order of

temporary injunction in the following terms is required to be passed.

(i) Till the disposal of the civil suit filed by the plaintiff, the defendant No.1 shall permit the plaintiff to use 3 feet space on eastern side of the property of the defendant No.1 to enable the plaintiff and other persons coming to his property ingress and egress.

(ii) The submission made on behalf of the defendant No.1 that he will take steps to merge the sewerage line of the plaintiff's property with the sewerage line of property of the defendant No.1 is accepted. It is clarified that this should be done by the defendant No.1 without causing undue delay and inconvenience to the plaintiff.

(iii) The defendant No.1 is permitted to undertake the construction as per the sanctioned plan with the above observations.

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                    (iv)     The Municipal Corporation, Amravati shall supervise the

merging of the sewerage line as per this order.

The petition is disposed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE adgokar