Bombay High Court
Gangasagar Sahkari Gruh Nirman ... vs Shubhangi Satish Vaidya And ... on 9 February, 2021
Bench: V. V. Kankanwadi
(1) SA No.656/2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.656 OF 2017
WITH
CIVIL APPLICATION NO.2012/2017
M/s Gangasagar Sahakari Grih
Nirman Sanstha Maryadit,
Nakshatrawadi, Aurangabad. = APPELLANT
(Orig.Plaintiff)
VERSUS
1) Shubhangi w/o Satish Vaidya
and ors. = RESPONDENTS
(Orig.Defendants)
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Mr.PN Sonpethkar,Advocate for Appellant
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 9th February, 2021.
PER COURT :-
1) Present appeal has been filed by original
plaintiff to challenge the judgment and decree in
Regular Civil Appeal No.87 of 2013 by learned Ad-hoc
District Judge-3, Aurangabad on 21-11-2016; whereby the
learned District Judge has reversed the judgment and
decree passed in Regular Civil Suit No.472 of 2008 by
learned Joint Civil Judge Junior Division, Aurangabad,
Dist. Aurangabad on 28-02-2013. The suit, filed for
perpetual injunction by the present appellant-
plaintiff, was decreed by learned Lower Court; however,
it came to be dismissed in the appeal. Parties would be
referred by their original status, henceforth, for the
sake of convenience.
2) It is not in dispute that the plaintiff is a
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registered housing society. Original defendants are the
owners of adjoining lands to the land of the plaintiff.
3) Original plaintiff has come with a case that
it is the owner and possessor of suit land Gat No.7,
admeasuring 5 Acres situated in village Nakshatrawadi,
Tal. and Dist. Aurangabad. Plaintiff had purchased the
suit land on 12-01-1983. It is contended that there was
a joint measurement of the suit land in 1982. The land
of the defendants was shown as 100 meters. Thereafter,
the layout of the defendants was sanctioned by the
Municipal Corporation, Aurangabad in respect of that
100 meters. Thereafter, the defendants' land was once
again measured in July 2004 without any reason, but at
that time, the east-west land was shown as 103 meters.
The Municipal Corporation has granted permission of
construction to the defendants in respect of 103
meters. It is the case of the plaintiff that in fact,
the defendants have planned to encroach on its area by
showing 3 meters land excess. Defendants have tried to
dig pits on 27-05-2008, however, they were restrained
by the plaintiff. Hence, the suit was filed for
restraining the defendants from committing
encroachment.
4) The defendants resisted the claim of the
plaintiff by filing written statement. Defendants
denied the description of the boundaries of the suit
property. They have challenged the locus standi of the
person filing the suit on behalf of plaintiff. They
have denied that there was joint measurement of the
lands in 1982 and their land was shown as 100 meters.
One Chandabai Patki had applied on 25-01-1982 for
measurement of entire land Gat No.7. Accordingly, it
was measured on 06-06-1982. It was not mentioned that
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land of the defendants is 100 meters. The measurement
carried out in 2004 is as per the actual possession,
sale-deed and 7 x 12 extract. The defendants No.1 to 4
have sold their share on 29-12-2004 to one Megh-Malhar
Sahakari Gruha Nirman Sanstha, New Neelam Sahakari
Gruha Nirman Sanstha by executing 4 sale-deeds in
respect of the different plots. Construction was
undertaken by defendant No.5 as building contractor and
it was in progress.
5) After the issues were framed, the parties
have led oral as well as documentary evidence. After
going through the evidence and hearing both sides, the
learned Lower Court has come to the conclusion that
plaintiff proved the boundaries as per map Ex.47. It
has been further held that the plaintiff has proved
that the defendants are causing obstruction to the
possession of the plaintiff over the suit land. The
suit was decreed. Original defendants approached the
First Appellate Court. After hearing both sides, the
appeal has been allowed. The decree passed by the
learned Lower Court has been set aside. The suit has
been dismissed. Hence, this appeal by original
plaintiff under Section 100 of the Code of Civil
Procedure.
6) Heard learned Advocate Shri. P.N. Sonpethkar
for the appellate/plaintiff. Perused the impugned
judgments and other documents produced on record. It is
not even necessary to issue notice to the respondents/
defendants. Unless the appellant-plaintiff shows that
the appeal, under Section 100 of Code of Civil
Procedure, is giving rise to a substantial question of
law, it is not necessary to issue notice to the
defendants.
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7) It has been submitted on behalf of appellant-
plaintiff that the plaintiff has proved its ownership
over the property i.e. Gat No.7 to the extent of 5
acres. The said ownership has been proved by proving
the boundaries. The dispute was in respect of length of
east-west boundary. It was 100 meters. The appellate
Court has also held that the plaintiff has proved
ownership over the suit property, but the suit came to
be dismissed on the ground of non-joinder of necessary
party. It appears that the defendants had not pressed
that point and no issue was also framed by the learned
Lower Court to that effect. Suit could not have been
dismissed only on the ground of non-joinder of
necessary party. The dispute was not considered on
merits, but only on the technical point, the appeal has
been decided. Therefore, the substantial questions of
law are arising in this case.
8) At the outset, it can be seen that the
defendants had specifically contended in the written
statement itself that defendant No.1 to 4 have sold out
their land in 2004 by executing 4 separate sale-deeds.
In spite of these specific pleadings, there was no step
taken by the plaintiff to implead those parties, who
had purchased the land in 2004. The suit is filed on
09-06-2008. Therefore, it appears to have been filed
against wrong persons also, who were no longer the
owners of the property. That means the suit was not
only suffering from non-joinder, but also mis-joinder.
Now, it is harped upon the point that no issue was
framed and it was not pressed by defendants before the
learned Lower Court. It can be seen that the plaintiff
can not blame the defendants for this. They had raised
the specific pleading. The plaintiff did not act upon
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it. However, the plaintiff had every knowledge of the
case that was required to be proved by him. Therefore,
now, he can not take advantage of the said fact.
Another fact to be noted is that defendant No.5 was the
building contractor. He has examined himself in the
case. In his examination-in-chief itself, he has stated
that he is not authorized by defendant Nos.1 to 4 to
make any construction. He was developing the land for
those societies, who had purchased the land from
defendant Nos.1 to 4. In spite of this evidence led in
the matter, if the plaintiff fails to take any step to
include the owners of the lands/plots; then he should
be ready for the consequence also. It appears that the
learned Lower Court failed to consider this aspect and
went on to decree the suit against those persons who
are no longer the owners of the lands/plots. The decree
that was passed in the suit was totally unexecutable.
If the plaintiff, even after knowledge, does not take
any step then, now he can not say that the suit ought
not to have been dismissed on the count of non-joinder
of necessary party.
9) Further, even if we consider the case on its
merits, then it can be seen that the plaintiff had come
with a case that there was measurement in 1982.
However, the learned Lower Court has stated that no
evidence has been adduced to prove the said
measurement. Thereafter, the plaintiff has adduced
evidence to show that measurement has taken place twice
in 2004. The plaintiff is relying on one of those
measurements that was carried out in July 2004. He is
discarding or not relying on the measurement done in
September 2004. The plaintiff can not pick and choose
in such a manner. Both the measurements were not done
at his behest. The plaintiff did not get any
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measurement done independently. Another fact to be
noted is that the plaintiff was asking for relief of
injunction, but it appears that though the measurements
were done in 2004, he did not approach the Court of law
immediately. He filed the suit after a period of 4
years. Therefore, the latest position was not brought
on record. The suit suffers from delay and latches.
Another fact is that when already the work was on the
verge of completion, then whether the suit for the
relief of only injunction can be said to be
maintainable? Answer is "No". Even if it is accepted,
for the sake of arguments, that the plaintiff had
proved that length of the boundary was 103 meters, then
also, the suit in the present form was not
maintainable. The plaintiff had every idea about the
ground situation, yet such suit has been filed. It has
further come on record that the layout of the
defendants was sanctioned by the Municipal Corporation
and building permission has also been sanctioned. The
plaintiff had the opportunity to raise dispute before
the municipal authorities, yet that opportunity is also
not taken by it. It appears that now he had filed
objection with Municipal Corporation, by giving letter
dated 24-11-2020 i.e. during the pendency of this
second appeal. He was asked by the authorities to
produce any order passed by this Court vide letter
dated 13-01-2021. No order has been passed by this
Court in favour of appellant-plaintiff till today. This
appears to be his belated attempt. It will not be out
of place to mention here that the societies, who have
purchased the lands/plots and making constructions are
the societies of Government Servants and employees of
Zilla Parishad, who had taken loan from Government and
financial institution. Under such circumstance, unless
it is proved by cogent evidence, no discretionary
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relief could be granted.
10) Under the above circumstance, no substantial
questions of law are arising in this case, requiring
admission of the appeal. The appeal deserves to be
dismissed and accordingly, it is dismissed. Pending
Civil Application stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
