Bombay High Court
Shri. Meeneshvar Jagannath Ayare vs Shri. Kachar Vishnupant Gavhane on 2 July, 2021
Bench: Anuja Prabhudessai
P.H. Jayani 18 WPST96026.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO.96026 OF 2020
Meeneshvar Jagannath Ayare ....Petitioner
v/s.
Kachar Vishnupant Gavhane .... Respondents
Mr. P.M. Arjunwadkar for the Petitioner.
Mrs. Pratibha Gavhane for Respondent No.1.
Mrs. M.S. Bane, AGP for the State.
CORAM:SMT. ANUJA PRABHUDESSAI, J.
DATED : 02nd JULY, 2021.
P. C. :-
. Rule. With consent of the parties, rule made returnable
forthwith.
2. The Petitioner herein has challenged the order dated
17/02/2020 passed by learned District Judge-1, Khed-
Rajgurunagar, Dist. Pune in Miscellaneous Civil Appeal
No.25/2018. By the impugned order, the learned District
Judge-1 has set-aside the order dated 27/03/2018 passed by
the trial Court and thus dismissed the Application at Exhibit -
05 fled by the Petitioner-plaintif in Special Civil Suit
No.71/2017, seeking to restrain the Respondent-defendant
P.H. Jayani 18 WPST96026.2021.doc
from interfering or encroaching upon the suit property.
3. The dispute is in respect of house property No.421 and
land admeasuring 0.06R appurtenant to the House Property.
The said property shall be hereinafter referred to as 'the suit
property'. The Petitioner claims that by Agreement for Sale
dated 22/10/2010 he had agreed to purchase the suit
property for sale consideration of Rs.2,85,000/- out of which
Rs.11,000/- was paid by way of an earnest money and
balance was to be paid as on the date of execution of the sale
deed. It is stated that the Respondents had handed over
possession of the suit property to the plaintif on the date of
execution of the Agreement for Sale. The Petitioner claims
that the Respondents received the balance consideration on
22/10/2010 and accordingly executed the sale deed in his
favour.
4. The grievance of the Petitioner-plaintif is that taking
undue advantage of the confdence reposed in him, the
Respondents executed the sale deed only in respect of the
house property. The Petitioner claims that the Respondents-
defendants are threatening to encroach in the property which
P.H. Jayani 18 WPST96026.2021.doc
is in his possession. The Petitioner therefore fled a suit for
permanent injunction and also sought interim relief during the
pendency of the suit.
5. The Respondents denied having executed any
Agreement for sale of suit property for sale price of
Rs.2,85,000/-. The Respondents-defendants have admitted
having executed the sale deed no.4383/2010 in respect of the
house property and have denied having sold any land
appurtenant to the house property.
6. The trial court, upon hearing the respective parties and
considering the material on record, granted interim relief in
respect of the entire suit property. The said order was carried
in Appeal and the Appellate Court by the impugned judgment,
has set-aside the order of the Trial Court essentially on the
ground that the Agreement of Sale dated 22/10/2010 refers to
the house property and the land whereas the sale deed which
was executed subsequently, refers only to the house property
no.421 along with some open space viz. 16 feet on south, 4
feet on west and 10 feet on north. The learned Judge has
held that the sale deed has to be preferred as against the
P.H. Jayani 18 WPST96026.2021.doc
Agreement for sale which refers to 6 gunthas of land. The
Trial Court has doubted the genuineness of the agreement for
sale as there is no reference of the said agreement in the sale
deed.
7. In the course of hearing, Mr. P.M. Arjunwadkar, learned
counsel for the Petitioner-plaintif under instructions has
stated that at this stage, he is not pressing for the relief in
respect of 6 gunthas of land and that he is restricting his
claim to the house property along with appurtenant open
space admeasuring 16 feet on the southern side, 4 feet on
the west and 10 feet on the north.
8. A perusal of the records prima facie reveals that the
Respondents-defendants had executed a sale deed dated
22/10/2010 in favour of the Petitioner-plaintif. By the said
sale deed, the Respondents-defendants had sold to the
Petitioner house property no.421 along with some open space
abutting the house for sale consideration of Rs.2,85,000/-.
The dimensions of the said land as mentioned in the sale
deed are 16 feet on south, 4 feet on west and 10 feet on
north. The said sale deed has been registered and pursuant
P.H. Jayani 18 WPST96026.2021.doc
to the said sale deed, the land which is the subject matter of
the said sale deed, is mutated in favour of the Petitioner-
plaintif. The sale deed further indicates that the
Respondents had handed over possession of the said sale
deed property on the date of execution of the said sale deed.
The learned District Judge has also recorded a fnding that the
Petitioner has purchased house property along with open
space of dimensions as mentioned in the sale deed on
payment of consideration and that he has been put in
possession of the said property. The learned Judge has
however not assigned any reason for declining interim relief
in respect of the sale deed property. Sufce it to say that the
plaintif having acquired title in respect of the said land, has
right to enjoy the house property and the said appurtenant
land without any interference or obstruction.
9. Hence, the Petition is partly allowed. The impugned
order is partly set-aside and application at Exhibit-5 is partly
allowed. Accordingly, the Respondents-defendants are
restrained from interfering with the possession of the plaintif
and/or encroaching in the property which is the subject
matter of the sale deed viz. house property no.421 along with
P.H. Jayani 18 WPST96026.2021.doc
open space appurtenant to the said house admeasuring 16
feet on south, 4 feet on west and 10 feet on north.
10. Writ Petition stands disposed of. Rule made absolute in
above terms.
PREETI
H JAYANI (SMT. ANUJA PRABHUDESSAI, J.)
Digitally signed by
PREETI H JAYANI
Date: 2021.07.14
11:40:43 +0530
