Bombay High Court
Satish S/O. Govindrao Khalashe vs Dilip S/O. Namdeo Nagrale And ... on 25 August, 2021
Bench: Manish Pitale
1/3 23A- WP 3138.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3138 OF 2021
( Satish Govindrao Khalashe vs. Dilip S/o Namdeo Nagrale and anr. )
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Ms. Prajakta Chaudhari, Advocate for petitioner.
CORAM : MANISH PITALE J.
DATE : 25/08/2021
By this writ petition, the petitioner
(original defendant) has challenged orders passed by
the Appellate Court whereby an application for stay
filed on behalf of the petitioner was rejected and an
application seeking review of the order was also
rejected.
2. The respondents in the present case i.e.
original plaintiffs filed a suit for declaration and
permanent injunction claiming that they were in
exclusive possession of the suit property and that the
petitioner was not entitled to disturb their possession
over the suit property. The learned counsel appearing
for the petitioner is relying upon an amendment
carried out in the plaint and a specific prayer added
on behalf of the respondents for handing over
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possession of the suit field to them. It is the
contention of the petitioner that when such
amendment was made and it was conceded on behalf
of the respondents that they were not in possession of
the suit property, the application for stay moved
before the Appellate Court ought to have been
entertained.
3. But a perusal of the judgment and order
dated 02/08/2018 passed by the Court of Civil Judge
Senior Division, Hinganghat, on the suit filed by the
respondents would show that the suit was decreed
and the petitioner and other persons were restrained
from disturbing the possession of the respondents in
the suit field. In the said judgment and order, the
aforesaid Court has specifically answered issue
pertaining to exclusive possession of the respondents
in the suit property in the affirmative. It is also found
that the petitioner had threatened to dispossess the
respondents from suit property. In the face of the
aforesaid findings, it is obvious that the alternative
prayer for grant of possession made on behalf of the
respondents was rendered meaningless.
4. In this backdrop, when the prayer made
on behalf of the petitioner in the application for stay
before the Appellate Court is perused, it becomes
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obvious that such a prayer could not have been
granted. It is only after the finding regarding
exclusive possession rendered in favour of the
respondents is upset, if at all, by the Appellate Court
that the question would arise of holding the direction
of restraining the petitioner as being erroneous.
There is, in fact, no prima facie case made out to
show that the said finding regarding exclusive
possession rendered by the aforesaid Court could be
said to be erroneous.
5. In view of the above, this Court finds that
there is no error committed by the Appellate Court
while passing the impugned order.
6. Accordingly, the writ petition is dismissed.
JUDGE
KOLHE
