Bombay High Court
Shakuntala Bharatarinath Kale ... vs Diwakar Raosaheb Babras And ... on 11 February, 2021
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.12787 OF 2019
01 Shakuntala w/o Bhartarinath Kale,
age: 55 years, Occ: Household
and Agril.;
02 Prakash s/o Raghuji Kale,
age: 58 years, Occ: Agriculture;
Both R/o Swarajya Nagar, Beed,
District Beed. Petitioners
Versus
01 Diwakar s/o Raosaheb Babras,
age: 71 years, Occ: Agriculture,
R/o Swarajya Nagar, Beed,
District Beed.
02 State of Maharashtra,
through Collector, Beed,
District Beed.
03 The Tahsildar,
Tahsil Ofce, Beed,
District Beed. Respondents
Mr.G.K.Thigale, advocate for the Petitioners.
Mr.Ram S. Shinde, advocate for Respondent No.1.
Mr.S.P.Deshmukh, AGP for Respondents No.2 & 3.
CORAM : V.K.JADHAV, J.
DATE : 11th February, 2021.
ORAL JUDGMENT :
1 Heard. Rule. Rule made returnable forthwith and
heard fnally by consent of learned Counsel for respective
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parties.
2 The petitioners, who are the original plaintifs, have
instituted suit, bearing RCS No.694 of 2017 for decree of
perpetual injunction. In the suit, petitioners-original plaintifs
have fled an application at Exhibit-5 for issuance of temporary
injunction. The trial Court has allowed the said application
(Exhibit-5) and restrained the defendants (respondents herein)
from causing any obstruction to the peaceful possession of the
petitioners over the suit property.
3 Being aggrieved by the same, respondents-original
defendants have preferred Misc. Civil Appeal No.04 of 2019 and
by judgment and order dated 26.07.2019, the District Judge has
modifed the said order of injunction in the following manner:
"(1) The order of temporary injunction to
restrain the defendant Nos.1 and 2 from creation
of road is hereby set aside. Instead of it, the
defendant Nos.1 and 2 are hereby restrained by
way of order of temporary injunction to remove
the compound wall erected by plaintifs on
southern side boundary of suit property prior to
decision by following due course of law prescribed
under the provisions of law under Maharashtra
Land Revenue Code as well as Mamlatdars' Courts
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Act before giving its fnding on merit whether
erection of compound wall in question amounts to
obstruction or disturbance or obstruction in the
use of Pandan/cattle-road and there is necessity
for its removal."
4 It appears that though the learned District Judge has
modifed the order restraining the defendants by way of an order
of temporary injunction to remove the compound wall erected by
the plaintifs on the southern side boundary of the suit property,
however, further observed that by following due course of law
under the provisions of Maharashtra Land Revenue Code as well
as Mamlatdars' Courts Act before giving its fnding on merits,
whether erection of compound wall in question amounts to
obstruction or disturbance or obstruction in the use of
pandan/cattle road and there is necessity for its removal.
5 Needless to state, it is for the trial Court to record a
fnding on the basis of evidence adduced by the parties at the
conclusion of the suit.
6 By order dated 15th October, 2019, this Court
(Coram: Ravindra V. Ghuge, J.) has passed the interim order
directing therein that the compound wall erected by the plaintifs
on the southern side boundary of the suit property shall be
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protected. So also directed the petitioners herein to maintain
status quo with regard to the suit property and shall not create
third party interest or encumbrances until further orders. Said
interim order remained in force till this date.
7 So far as modifcation of the order passed by the
learned District Judge is concerned, the petitioners-plaintifs have
approached this Court by fling instant writ petition. However,
the respondents-original defendants have not preferred any writ
petition against the said modifed order passed by the learned
District Judge.
8 In view of the above, without going into the merits of
the case, in the interest of justice, it would be just and proper if
the interim order passed by this Court, as referred above, is
continued till disposal of the suit by giving suitable directions to
the trial Court to dispose of the suit in an expeditious manner.
9 Hence, the following order:
(i) Writ Petition is hereby partly allowed.
(ii) The interim order passed by this Court
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(Coram: Ravindra V. Ghuge, J.), particularly paragraph no. 3 of
the order dated 15th October, 2019 in the instant writ petition,
shall remain in force till the disposal of the suit; with the
following directions:
(a) The trial Court shall decide the suit as expeditiously
as possible within a period of six months from the date of this
order.
(b) The parties shall co-operate with the trial Court in
compliance with the direction given for expeditious disposal of
the suit.
10 Rule is made partly absolute in above terms. There
shall be no order as to costs.
(V.K.JADHAV)
JUDGE
adb
