Jayant Vasant Kadam And Ors vs Shantaram Laxman Shinde And Ors
2021 Latest Caselaw 3485 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                                WRIT PETITION NO.656 OF 2021



     Jayant Vasant Kadam & Ors. ....                Petitioners

             Vs.

     Shantaram Laxman Shinde                 ....     Respondents
     & Ors.

     Mr. Shashank Mangale for Petitioners.
     Mr. Surel S. Shah for Respondents.


                                         Coram : NITIN W. SAMBRE, J.

Date : 24TH FEBRUARY, 2021

P.C.:

1. This petition is by the original Defendants questioning the

order dated 23rd December, 2019 passed by the learned Civil Judge,

Junior Division, Chiplun, which order was confirmed on 4 th January,

2021 by the learned District Judge-1, Chiplun in Miscellaneous Civil

Appeal No.15 of 2020, whereby temporary injunction granted by trial

Court came to be confirmed.

2. The case of the Petitioners is, Respondent No 1, Shantaram

Laxman Shinde initiated a suit being Regular Civil Suit No. 85 of 2019

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thereby praying a decree for removal of encroachment on the road and

mandatory injunction not to restrain the Plaintiffs from using the suit

road.

3. A prayer for temporary injunction vide order impugned

dated 23rd December, 2019 was allowed restraining the Petitioners /

Defendants from interfering with peaceful use of road marked in blue

colour in the plaint map. A mandatory injunction is also issued thereby

directing the Petitioners to remove an impediment created on the road

marked in red colour.

4. The aforesaid order came to be confirmed in an appeal

being Miscellaneous Civil Appeal No. 15 of 2020 passed by the learned

District Judge -1, Chiplun.

5. Learned counsel appearing for the Petitioners-Defendants

while inviting attention of this Court to the Sale-Deed dated 9 th March,

1994 would urge that in the Sale-Deed executed by the predecessor-in-

title of the Petitioners and Defendants, Defendant No.1 was promised

some road as was existing and alongwith Sale-Deed, the said rights

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were conferred in Respondent No.1. He would then urge that there is

no map prescribing the way as mentioned in the Sale-Deed and as such

said recitals ought not to have been read to the benefit of Respondent

No. 1. The further contention are, no right of way exist to the Plaintiff/

Respondent No. 1 as shown in blue and yellow colours in the map.

Apart from above, it is also claimed that the Plaintiff in collusion with

Gram Panchayat employees, got done mutation entry in the Gram

Panchayat record, however, same is subsequently cancelled. According

to the Petitioners only after completion of construction of wall, the

objection is raised. The Petitioners submit that there is an alternate

road available to Respondent No. 1 from Southern side of his plot,

which is regularly used by the parties to the suit. As far as some of the

Defendants in Gat No. 3899 are concerned, they have supported the

claim of Plaintiff- Respondent No.1. In short, submissions of learned

counsel for the Petitioners are, there is no material on record to infer

that the Plaintiff has right to use road and no pinpointed existence of

same is mentioned in the suit map. As such, judgment in the Goa

matter cited in Appellate Court judgment has no application to case in

hand.

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6. While countering the aforesaid submissions, learned

counsel for the Respondents, Shri. Surel Shah would support the order

impugned, as according to him, the affidavits of adjoining land owners

have supported the case of Plaintiffs. He would rely on the recitals in

the Sale-Deed and the Map produced by both the parties, so as to claim

that there exists road from Plot No. 165/5 to the suit plot. He would

further claimed that there exist road from plot of the Petitioners i.e. Gat

No. 165/1/1. He would then claimed that Crime No. 42 of 2019 came

to be registered against the Petitioners in the matter of obstruction

created by him. Apart from above, he would urge that in view of

concurrent findings, the Court should be slow in showing indulgence.

7. Considered rival submissions.

8. The learned Civil Judge, Junior Division, Chiplun while

dealing with the issue of grant of an injunction has considered that in

Gat No. 165, 10.50 gunthas land was purchased by the Plaintiff and Ajit

Mahadik and Vijay Desai on 9th March, 1994. Out of the aforesaid

property, the Plaintiff claims plot consistent of 3.50 gunthas. On 9 th

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December, 1996, Pandu Daji Metkar has given a consent in favour of

the Respondent- Plaintiff thereby permitting him to have a right of way

from the front side of house of Mr. Palande. The said agreement/

Consent letter dated 9th December, 1996 read with recitals in the Sale-

Deed dated 9th March, 1994 prima facie fortifies the case of Respondent

No.1 that there exist a way, which is to be used by Respondent No. 1 for

entering his plot. Though, learned Counsel for the Petitioners has

claimed that easementary right ought not to have been claimed and

awarded in favour of Respondent No. 1 based on the judgment in the

matter of Goa Industrial Development Corporation and Anr. Vs.

Sadhana Builders Private Limited & Ors., reported in 2015 (4) Bombay

C.R. 62, what is required to be noted is since 1996 there is a consistent

use of the entry way towards plot in question. Apart from above,

finding on the easementary rights are only for the purpose of deciding

an injunction, however, the Civil Court is required to deal with the

same at the fag-end of the suit proceedings after appreciating the

pleadings and evidence on record.

9. The documents at serial nos. 7 and 8 i.e. in the Village

Forms 26 and 23 produced alongwith Exhibit 5 of the case has justified

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the claim of Respondent No.1. Apart from above, an earlier obstruction

created by the Petitioners have resulted in registration of F.I.R., in

relation to very same road is not in dispute. The existence of road can

be inferred from the rival pleadings and evidence of the parties,

however, the only dispute at the behest of the Petitioners is the

existence of road from Plot of the Defendants from Gat No. 161/1/1.

The aforesaid claim of the Defendants-Petitioners is required to be

overlooked particularly in view of the fact that the record shows that

the road which was used and obstructed by the Petitioners and

appropriate criminal proceedings were taken out.

10. In the aforesaid backdrop, the views expressed by both the

Courts below based on the pleadings and documentary evidence

appears to be a possible view.

11. No palpable error of appreciation of evidence or any

illegality or material irregularity could be noticed, which warrant

interference in extra ordinary jurisdiction. The petition, as such fails.

Dismissed.

( NITIN W. SAMBRE, J.)