Bombay High Court
Vithal Vishwanath Yelkar vs Ram Vishwanath Bhadarge And ... on 15 November, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.4731 OF 2021
IN SAST/20222/2020
WITH
CIVIL APPLICATION NO.4732 OF 2021
VITHAL VISHWANATH YELKAR
VERSUS
RAM VISHWANATH BHADARGE AND OTHERS
...
Mr. K.V. Patil, Advocate for the applicant
Mrs. M.S. Mhase, Advocate for respondent Nos.1 to 4
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 30th SEPTEMBER, 2021.
PRONOUNCED ON : 15th NOVEMBER, 2021
ORDER :
1 Civil Application No.4731 of 2021 has been filed for condoning
the delay of 41 days in filing Second Appeal. The applicant is the original
plaintiff, who had filed Regular Civil Suit No.190/2010 before Joint Civil
Judge Junior Division, Nilanga, Dist. Latur for perpetual injunction. The said
suit came to be dismissed on 30.11.2013. The First Appeal filed by the
original plaintiff bearing Regular Civil Appeal No.2/2014 has been dismissed
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by learned District Judge-1, Nilanga on 24.09.2019. Original plaintiff wants
to file Second Appeal, however, there is delay of 41 days.
2 The applicant has come with a case that he had no knowledge
about the dismissal of his appeal due to the communication gap between him
and his Advocate, who was representing him in the First Appellate Court. He
says that the delay is unintentional and, therefore, deserves to be condoned.
3 Though the learned Advocate for the respondent Nos.1 to 4 is
strongly objecting; taking into consideration the duration of the delay and the
fact that the parties are coming from the rural area, the delay deserves to be
condoned. Accordingly it is condoned.
4 By consent of learned Advocates representing both the parties
the matter was taken up for admission immediately and the submissions have
been heard at length. Both of them have made submissions in support of
their respective contentions.
5 It is now required to be seen, as to whether the appellant has
shown that there is scope for framing substantial question of law, as
contemplated under Section 100 of the Code of Civil Procedure. Plaintiff had
come with a case that he had purchased 86 R land from one Omkar Pol and 5
3 CA_4731_2021
R land of respondent No.1 from Sy. No.16 situated in village Shend, Tq.
Nilanga, Dist. Latur on 07.05.2004. It is the contention of the plaintiff that
land admeasuring 21 R belonging to the respondent No.1 was acquired by
the Government of Maharashtra for canal in 1987. Again in 1992 from the
same Gat number 70 R land was acquired from respondent No.1 for
extension of the said canal. Plaintiff contends that because of those
acquisitions only 01 R land was left with respondent No.1, however, due to
not taking entry in the 7/12 extract in respect of acquisition of 70 R land,
respondent No.1 has taken disadvantage and transferred 70 R land in favour
of respondent No.2. According to the plaintiff, the possession of 70 R land is
not with respondents, but it is with the Government. Still the respondents
are obstructing him and, therefore, he filed the suit.
6 Original defendant Nos.1 and 2 denied all the averments and
submitted that the boundaries given by the plaintiff in the pleadings are
different from the boundaries in the sale deed of the plaintiff and, therefore,
he cannot seek injunction as prayed.
7 Both the Courts below have held that the plaintiff has failed to
prove his lawful possession over the suit land and, therefore, he has been
held to be not entitled to get the relief of permanent injunction.
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8 It can be gathered from the pleadings, evidence and the contents
of both the impugned Judgments that the dispute is mainly in respect of
Eastern side boundary of the suit land. In the pleadings the plaintiff has
given the boundary towards East as "Government canal and then after the
land of defendant which has been acquired by Government". However, if we
see his sale deed, it is stated as - "iwosZl elyxk dWukWy o ns.kkj dza-2 ph f"kYyd tehu".
Thus, the inconsistency has been brought on record. We will have to go by
the documents and not by pleadings. Both the Courts have held that it
appears from the record that twice the land belonging to respondent No.1
was acquired but who is actually in possession is not concerned to the
plaintiff. Plaintiff has not shown, as to where the remaining 01 R land of the
defendant is situated. No authentic map of the site was produced before the
Trial Court. Plaintiff has not examined his one of the predecessors i.e. Omkar
Pol. If we go by the boundary shown in the plaint, then, immediately
towards the East of the suit property there would be Government canal and
in that case how and in what manner the defendants would try to dispossess
him, taking disadvantage of the revenue record, is not understandable. The
story put forward by the plaintiff is unacceptable on the preponderance of
probabilities and, therefore, the discretion has been rightly used by both the
Courts in rejecting the relief. No substantial questions of law, as
contemplated under Section 100 of the Code of Civil Procedure, are arising in
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this case, requiring admission of the Second Appeal. It deserves to be
dismissed.
9 As a consequence of the discussion, following order is passed.
ORDER
1 Civil Application No.4731 of 2021 stands allowed and disposed
of. Registry to verify and register the Second Appeal.
2 The Second Appeal stands dismissed at the stage of admission
itself.
3 Civil Application No.4732 of 2021 for stay stands disposed of, in
view of dismissal of the Second Appeal.
( Smt. Vibha Kankanwadi, J. )
agd
