Bombay High Court
Vasant Bhimrao Shirure And ... vs Tukaram Namdev Shirure And ... on 31 August, 2021
Bench: V. V. Kankanwadi
SA-486-1990.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.486 OF 2019
VASANT S/O BHIMRAO SHIRURE AND ANR
VERSUS
TUKARAM S/O NAMDEV SHIRURE AND ANR
...
Mr. T. M. Venjane, Advocate for appellants.
Mr. A. R. Borulkar, Advocate for respondent Nos.1 and 2.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 31.08.2021
ORDER :-
. Present appeal has been filed by the original defendants. Present
respondents are the original plaintiffs, who had filed Regular Civil Suit
No.316 of 2015 before learned Civil Judge Senior Division, Nilanga for
perpetual injunction as well as mandatory injunction. In the said suit,
defendant Nos.1 and 3 filed written statement and after evidence, the
suit came to be partly decreed. Defendant No.1 is directed to remove
his pipeline from the land of the plaintiffs within a period of two
months. Relief of perpetual injunction was rejected. Original defendant
Nos.1 and 3 filed Regular Civil Appeal No.64 of 2017 before learned
District Judge-1, Nilanga. In the said appeal, cross objections were filed
by original plaintiff - respondent No.1. The appeal came to be
SA-486-1990.odt
dismissed, so also the cross objections were also dismissed by judgment
and decree dated 21.12.2018. Hence, present appeal by the defendants.
2. Heard learned Advocate Mr. T. M. Venjane for appellants and
learned Advocate Mr. A. R. Borulkar for respondent Nos.1 and 2. In
order to cut short, it can be said that both of them have made
submissions in support of their respective contentions.
3. It is to be noted that the plaintiffs had come with the case that
there was partition between plaintiffs and their father. Plaintiff No.1
and 2 received 74 R land each in Survey No.25/61/E. Plaintiff No.1
contended that defendant No.1 by misleading got executed sale-deed of
1 Guntha land in Survey No.25/61/A without any consideration from
him. The possession of the land was never handed over to defendant
No.1. Defendant No.1 by taking disadvantage of the said sale-deed laid
pipeline from the suit land in the year 2005. No permission from the
Government was taken by defendant No.1 for laying the pipeline.
Plaintiffs, therefore, made application for removal of the pipeline by
defendant No.1 to Tahsildar. Accordingly, order was passed by Tahsildar
on 31.01.2007 directing defendant No.1 to remove the pipeline and pay
compensation to plaintiffs. Then it was directed that if defendant No.1
want to lay pipeline, he may file separate application for the same. The
SA-486-1990.odt
order of Tahsildar was not challenged by defendant No.1 and he had not
even applied for fresh permission. He had also not removed the pipeline
as directed by Tahsildar and, therefore, the suit was filed.
4. Defendant Nos.1 and 3 by filing written statement contended that
plaintiff No.1 has executed the sale-deed for valid consideration and the
said sale-deed has been found to be valid in the judgment pronounced in
Regular Civil Suit No.42 of 2006. Now, unnecessarily the plaintiffs are
raising obstruction.
5. The learned Trial Judge held that the plaintiffs are the lawful
owners and possessors of the suit property. Defendants have illegally
laid pipeline through the lands of plaintiffs and they have failed to prove
the illegal obstruction by the defendants over the suit property
belonging to the plaintiffs. As aforesaid only relief of mandatory
injunction has been granted. On the similar lines, the first Appellate
Court has come to the same conclusion, however, it is to be noted that in
respect of point No.1 as to whether the plaintiffs proved their lawful
ownership and possession over the suit lands, the finding has been given
in the negative, yet, it has been held that the plaintiffs have proved that
the defendants have illegally laid the pipeline through the land of
plaintiffs. This appears to be contrary. Another fact that is required to
SA-486-1990.odt
be noted is that the sale deed was admittedly executed by plaintiff No.1
in favour of defendant No.1. It ought to have been considered by both
the Courts below as to whether without seeking any kind of relief in
respect of that sale deed; relief of mandatory injunction could have been
granted? The said sale deed was to the extent of 1 R and it has been
specifically mentioned in the said sale-deed that it is for laying pipeline.
Both the Courts have not considered as to what were the contents of the
said sale-deed and for what purpose the document was executed. The
said sale-deed was executed on 14.11.2005 and the suit was filed on
10.08.2015. Therefore, without seeking any relief in respect of sale-
deed, whether the suit that was filed in the year 2015 was maintainable
and was within limitation? This aspect has not been considered.
Further, it appears that there was another suit between the parties i.e.
Regular Civil Suit No.68 of 2006 and Regular Civil Suit No.42 of 2006.
The effect of these litigations on the present litigation appears to have
been taken into consideration, but whether proper note of the earlier
decisions has been taken or not is required to be considered in this case.
Here also, the order for removal of the pipeline appears to have been
passed by Tahsildar on 31.01.2007, then why it took so much of time
for plaintiffs to come to the Civil Court i.e. on 10.08.2015 for the same
relief. Hence, case is made out to admit the second appeal as it is giving
SA-486-1990.odt
rise to substantial questions of law as contemplated under Section 100
of the Code of Civil Procedure.
6. Second appeal stands admitted. Following are the substantial
questions of law :-
I) Whether the suit was within limitation taking into
consideration the fact that Tahsildar had already passed the order
regarding removal of pipeline on 31.01.2007?
II) Whether the suit was maintainable in absence of any relief
in respect of sale-deed executed by plaintiff No.1 in favour of
defendant No.1 on 14.11.2005?
III) Whether the Courts below justified in giving mandatory
relief and thereby directing defendant No.1 to remove the pipeline
when he had purchased 1 R land by registered sale-deed from
plaintiff No.1.
IV) Whether interference is required?
7. Issue notice to the respondents. Learned Advocate Mr. Borulkar
waives notice for respondents after admission.
8. Call record and proceedings.
[SMT. VIBHA KANKANWADI, J.]
scm
