Madhukar S/O Gulabrao Bondse vs Madhusudan S/O Gopalrao Sapkal ...
2021 Latest Caselaw 9878 Bom

Order                                                                                      9 sa 444-2019
                                                   1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.

                          CIVIL APPLICATION (CAS) NO.426/2021
                                           IN
                              SECOND APPEAL NO.444/2019
                                 Madhukar s/o Gulabrao Bondse,
                                           -VERSUS-
                            Madhusudan s/o Gopalrao Sapkal and others.


Office notes, Office Memoranda of
Coram, appearances, Court's orders                           Court's or Judge's Orders
or directions and Registrar's orders.

                                         Shri A.S. Deshpande, Advocate for appellant.

                                         CORAM : S.M. MODAK, J.

DATE : JULY 28, 2021.

Hearing was conducted through Video Conferencing and the learned counsel agreed that the audio and visual quality was proper.

2. Heard Shri Desphande, learned Advocate for the appellant-plaintiff. The suit of the plaintiff for declaration of ownership on the basis of adverse possession was decreed by the Trial Court. During appeal, the judgment was reversed and it was observed that plea of adverse possession cannot be taken as a sword and it can be taken only as a shield.

3. The respondents have filed caveat. This Court on 10/10/2019 has framed two substantial questions of law. In view of the latest pronouncement of Hon'ble Supreme Court, this Court felt necessary to go to the issue about maintainability of the suit on the basis of adverse possession.

Order 9 sa 444-2019

4. Pending appeal, the appellant has filed an application for stay. It was dismissed as there was no decree in favour of the plaintiff-appellant. Now the appellant's claim is that the respondents want to take forcible possession of the suit property which is described in the judgment. The suit property is open piece of land, admeasuring 2000 sq.ft.. On remaining 2000 sq. ft. of land, there is house belonging to the appellant. In respect of that portion of the land, there is no dispute and plaintiff is the owner. However, appellant feels that the respondents in view of decision in their favour want to evict the appellant from the house also.

5. The police personnel of Ajni Police Station have called the appellant vide letter dated 12/05/2021. The appellant has also informed the police as per his letter dated 01/05/2021. In view of these documents, the apprehension of the appellant about the eviction is well founded.

6. If both the judgments are perused, it is clear that even defendant no.1 has asked for possession from the appellant. If it is so, the defendant no.1 can certainly take possession only by following due process of law. Yet, this appeal is also pending. Hence, the appellant needs to be protected from eviction in respect of the suit property as well as remaining portion on which the suit house stands. Hence, the following order:

i) Prayer is granted in terms of prayer clause-b till next date of the hearing.

 Order                                                                        9 sa 444-2019


                                 ii)        The appellant to serve copy of

this order and documents to the respondents afresh.

7. Matter be kept on 30/08/2021.

JUDGE

R.S. Sahare