Bombay High Court
Sanjay Laxmanrao Gawande And ... vs Sau. Pushpa Dadarao Pundekar, ... on 1 March, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 1143/2021
1. Sanjay Laxmanrao Gawande,
aged 50 years, Occ. Cultivator.
2. Vaishnavi Sanjay Gawande,
aged 22 years, Occ. Education.
3. Om Sanjay Gawande,
aged 19 years, Occ. Education
All r/o Ambika Nagar, Akot,
Tq. Akot, Dist. Akola. .....PETITIONERS
...V E R S U S...
1. Sau. Pushpa Dadarao Pundekar,
aged 54 years, occ. Household
& Agriculturist, through power of
attorney holder Romil s/o Dadarao
Pundekar, aged 32 years, Occ.
Business, r/o Behind Pushpanjali
Mangal Karyalaya, Akola Road,
Akot, Tq. Akot, Dist. Akola.
2. State of Maharashtra, through
Collector, Akola, Dist. Akola.
3. Taluka Inspector of Land Records,
Ofce of T.I.L.R. Akot, Tq. Akot,
Dist. Akola.
4. Municipal Council, Akot,
through Chief Ofcer, Akot,
Dist. Akola ...RESPONDENTS
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Mr. R. L. Khapre, Senior Advocate Assisted by Mr. D. R.
Khapre, Advocate for petitioners.
Mr. A. M. Ghare, Advocate for respondent no.1.
Mr. A. J. Kadukar, A.G.P. for respondent nos. 2 and 3.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 01.03.2021
ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard
fnally by consent of learned counsel for the parties.
2. This writ petition is by original defendant nos. 1
to 3. Respondent no.1 herein is original plaintif whereas
respondent nos. 2 to 4 are original defendant nos. 4 to 6.
Heard Mr. R. L. Khapre, learned Senior Counsel for
petitioners, Mr. A. M. Ghare, learned counsel for
respondent no.1 and Mr. Kadukar, learned A.G.P. for
respondent nos. 2 and 3. At this stage, presence of
respondent no.4-Municipal Council is not essential.
3. The suit is fled for following reliefs:
(a) For declaration that the 15 meters
D.P. Road is as a layout road at the time of
conversion of feld Survey No. 651 as well as at
the time of conversion of the layout of feld
Survey No.651/2-A and to declare that
measurement sheet dated 01.06.2017 is illegal
and invalid.
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(b) For permanent mandatory injunction
be granted directing the Defendants to remove
the obstruction by erecting the wall on 15
meters D.P./Layout road just opposite the
Mangal Karyalaya thereby completely blocked
the access which is shown in the map in red
colour by letters E and F, so also direction be
issued to remove the fencing of barbed wire
erected on the said 15 meters wide D.P/Layout
road, which is shown in the suit map by letters
G and H and the said access be made clear by
further directing the Defendants not to create
any obstructions on this 15 meters road either
by himself or through his associates, agents,
employees or others."
Along with the plaint, plaint map is also fled
which is available on record at page no. 40 of compilation
of the writ petition.
4. Along with plaint, the plaintif fled an
application under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure for temporary mandatory injunction
seeking direction against the petitioners that they shall
remove the obstructions, which they have made just
opposite to the Mangal Karyalaya of the original plaintif.
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5. The suit is a contested one. The petitioners fled
their written statements and also fled counter claim. Not
only that, they also feld an application for injunction
(Exh.-50). The learned Civil Judge Senior Division, Akot on
22.12.2020 allowed the injunction application fled by
respondent no.1-original plaintif. Clause (2) of the said
order reads thus:
"The defendant Nos.1 to 3 are hereby directed
to remove the construction of wall on 15 Meter
D.P. road which is opposite the Mangal
Karyalaya of the plaintif as shown in the map
annexed with plaint in red colour by letters 'E'
and 'F'. So also directed to remove the fencing
of barbed wire erected on the said 15 meter
D.P. road as shown in the plaint map by letters
'G' and 'H', within 15 days from the date of
order."
On 02.01.2021, the learned Judge rejected the
application Ehx.-50 for grant of ad interim mandatory
injunction fled on behalf of the petitioners.
6. The petitioners fled two diferent Miscellaneous
Civil Appeals against these two separate orders passed by
the learned Judge of the trial Court against them. The
learned District Judge-I, Akot vide judgment dated
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17.02.2021 dismissed both the appeals fled on behalf of
the petitioners.
The petitioners thereafter fled an application
before the appellate Court (Exh.-21) for stay. The learned
Judge of the appellate Court vide order dated 20.02.2021
stayed the order till today.
7. The learned counsel for respondent no.1-original
plaintif invited my attention to averments in paragraph
16 of the petition, which are reproduced as under:
"16. .....Still in view of preparedness of the
petitioners to remove 9 meters wide compound
wall and fencing from the alleged road, the
respondent no.1 is not going to sufer any
inconvenience and the remaining construction
of the petitioners would remain intact..."
8. The learned Senior Counsel Mr. Khapre, on
instructions from the petitioners, makes a solemn
statement before this Court for and on behalf of the
petitioners that petitioners will remove the obstructions
from the points G to H and point E to F and will give 9
Meter wide road through the said points so as to have the
respondent access to her Mangal Karyalaya. Mr. Ghare,
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learned counsel for respondent no.1 is satisfed with this
submission made by the learned Senior Counsel.
9. The suit fled on behalf of respondent no.1 and
the counter claim raised therein by the petitioners is still
awaiting the result on its own merit from the learned Civil
Judge Senior Division, Akot, the parties have yet to enter
into the witness box. Therefore, any observations on
merit from this Court in respect of entitlement on the part
of both the parties may prejudice their respective cases.
However, interest of respondent no.1-original plaintif can
be taken care of in view of the solemn statement made by
the learned Senior Counsel for the petitioners.
10. In that view of the matter, I pass the following
order.
ORDER
(i) Without touching to the merits or
demerits of the orders passed by both the
Courts below, this writ petition is disposed of.
(ii) The petitioners are directed to
remove the obstruction and shall give 9 meters
road to the respondent no.1-original plaintif
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through Points G-H and E-F so as to give access
to respondent no.1.
(iii) Clause (2) of the order passed by
learned Civil Judge Senior Division, Akot is
substituted by this order.
(iv) Learned Civil Judge Senior Division,
Akot is directed to decide Special Civil suit
No.57/2020 within a period of 1 ½ years from
today.
(v) The petitioners are directed to abide
by the undertaking given to this Court and shall
remove the portion as indicated in this order,
within three days from today.
Rule accordingly. No order as to
costs.
JUDGE
kahale
