Bombay High Court
Pradeep Sukhdeo Ahire And Others vs Ramchandra Vithal Pawar And ... on 26 July, 2021
Bench: V. V. Kankanwadi
ca-8959-2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.8959 OF 2014
IN SA/524/2014
PRADEEP S/O SUKHDEO AHIRE AND ORS
VERSUS
RAMCHANDRA VITHAL PAWAR AND ORS
..........
Mr. K. M. Nagarkar, Advocate for applicants.
Mr. A. V. Hon, Advocate for respondent Nos.1, 2-A to 2-C.
Mr. A. M. Phule, AGP for respondent Nos.3 to 5.
..........
CORAM : SMT. VIBHA KANKANWADI, J.
Reserved on : 20.07.2021
Pronounced on : 26.07.2021
ORDER :-
. Present application has been filed for stay in Second Appeal
No.524 of 2014.
2. Present applicants - appellants are original defendant Nos.1 to 3.
Present respondent No.1 is the original plaintiff, who had filed Regular
Civil Suit No.132 of 2006 for declaration and injunction as well as
removal of encroachment before the learned Civil Judge Senior Division,
Kopargaon. The said suit came to be dismissed and counter claim of
defendant No.1 was also dismissed. Original plaintiff had then filed
Regular Civil Appeal No.35 of 2009 before the learned District Judge,
ca-8959-2014.odt
Kopargaon, Dist. Ahmednagar challenging the decree passed by the
learned Trial Judge. The said civil appeal came to be allowed by
reversing the impugned decree. Defendant Nos.1 to 3 and defendant
No.5 were directed to remove kiosk erected by them in front of the
property owned by the plaintiff. Hence, they have filed this second
appeal. The second appeal was admitted by this Court by framing
substantial question of law on 10.09.2014. Status quo was granted till
the respondents are served and it appears that it was not got extended
thereafter, but ultimately on 05.07.2021, learned Advocate for the
original plaintiff made a statement that his client will not go ahead with
the execution proceedings before the Executing Court before the next
date; the hearing of the application has taken place now.
3. Heard learned Advocate Mr. K. M. Nagarkar for the applicants,
learned Advocate Mr. A. V. Hon for respondent No.1, 2-A to 2-C and
learned AGP Mr. A. M. Phule for respondent Nos.3 to 5. In order to cut
short it can be said that all of them have made submissions in support of
their respective contentions.
4. At the outset, it can be seen that there is no concurrent finding of
both the Courts below. The plaintiff had come with the case that he is
the owner of the property, thereby he claimed title as well as possession
ca-8959-2014.odt
over the same, but the learned Trial Judge had given the finding in the
negative. The learned Trial Judge has also held that the plaintiff had
failed to prove that defendant Nos.1 to 3 are trying to make construction
over the suit property illegally. However, it was also held that defendant
No.1 has failed to prove his title and possession over the suit property.
Therefore, suit as well as counter claim was dismissed by the learned
Trial Judge. But the first Appellate Court has given a finding that
plaintiff is the owner of City Survey No.1896. He has also proved that
defendant Nos.1 to 3 had encroached upon the land owned by
defendant No.6. It is also held that the plaintiff has proved that the
defendant Nos.1 to 3 had encroached on the access of the plaintiff for to
and fro the public highway. Now, in the second appeal, which is already
admitted, it will have to be considered as to whether the plaintiff has
proved his title over the suit property and it appears from the judgment
and decree passed by the learned first Appellate Court in favour of
plaintiff that the construction that was raised or obstruction that was
raised by defendant Nos.1 to 3 was not on the property belonging to the
plaintiff, but then it appears that the plaintiff contended that it is
affecting his right to ingress or egress. Whether such easement can be
claimed is a question. When all the things are required to be gone into
in the second appeal in view of the fact that there are contrary
ca-8959-2014.odt
judgments of the Courts below, it is necessary to preserve the property in
the same position as it was at the time of filing of the suit or on the date
of the impugned decree. Hence, Civil Application stands allowed in
terms of prayer clause 'B' till the final hearing and disposal of the second
appeal.
[SMT. VIBHA KANKANWADI, J.]
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