Devlali Pravara Municipal ... vs Shaikh Ibrahim Balam Through His ...
2021 Latest Caselaw 14212 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                   CIVIL APPLICATION NO.7221 OF 2020
                                 WITH
                 SECOND APPEAL STAMP NO.1858 OF 2019
                                 WITH
                   CIVIL APPLICATION NO.7222 OF 2020

                      DEVLALI PRAVARA MUNICIPAL COUNCIL
                      THROUGH CHIEF OFFICER AND OTHERS

                                        VERSUS

                      SHAIKH IBRAHIM BALAM (DECEASED)
                     THROUGH HIS LEGAL REPRESENTATIVES
                                AND ANOTHER

                                   .....
          Advocate for Applicants/Appellants : Mr. D. R. Markad
        Advocate for Respondents No.1-A to 1-EE : Mr. R. R. Karpe
           Advocate for Respondent No.2 ; Mr. Joyeb I. Shaikh
             Advocate for Respondent No.3 : Mr. V. S. Bedre
                                   .....

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    01-10-2021.
ORDER :

1. Civil Application No.7221 of 2020 has been filed for condonation

of delay of 180 days in filing second appeal. The applicants/appellants

are the original defendants No.1 to 3. Present respondents No.1 and 2

are the original plaintiffs who had filed suit for perpetual injunction,

recovery of possession, mandatory injunction and mesne profits. The

said suit was filed before learned 2 nd Joint Civil Judge, Junior Division,

Rahuri, District Ahmednagar. It came to be partly decreed on 21-03-

2 CA 7221-2020, SAST 1858-2019, CA 7222-2020

2011. The present appellants had challenged the said Judgment and

decree in Regular Civil Appeal No.197 of 2011 before District Court,

Ahmednagar. The said appeal was heard by learned Adhoc District

Judge-6, Ahmednagar, and was dismissed on 19-04-2018. Hence,

the present appellants intended to file second appeal, however,

there is delay of 180 days.

2. The applicants have contended that no regular Chief Officer

was appointed to the Municipal Counsel Devlali Pravara and only the

additional charge was with Chief Officer, Shirdi Municipal Counsel

and for the other administrative problems they could not approach

the Advocate for preparing second appeal.

3. The application has been strongly opposed by the legal heirs of

respondent No.1 i.e. respondents No.1/A to 1/EE and respondents

No.2 and 3. It has been contended that administrative problems

cannot be the reason for not preferring a second appeal. Though

that may be one of the consideration, yet the applicants have not

explained as to why the in-charge Chief Officer could not have taken

the action to file second appeal. Therefore, no reasonable ground

much less sufficient has been shown for condoning the delay.

3 CA 7221-2020, SAST 1858-2019, CA 7222-2020

4. At the outset, it is to be noted that the appeal before the First

Appellate court appears to have been filed within limitation. Only

the delay is to approach this Court that means the appellants are not

habitual as such to commit delay. They have put forward a reason

that no regular Chief Officer was appointed for the Municipal Council

and the charge was kept with Chief Officer of another Municipal

Council. The chart has been given as to who had charged with

whom and what was the period of the said charge. Though in-

charge Chief officer is also having all the powers and rights to

exercise the same powers of the regular Chief Officer, yet those

administrative problems can be considered and taking into

consideration the delay that has been caused i.e. 180 days, the

same deserves to be condoned.

5. With consent of both the parties, the matter was taken up for

admission immediately.

6.       Heard         learned       Advocate       Mr.       D.       R.      Markad          for

applicants/appellants,              learned   Advocate        Mr.     R.     R.    Karpe       for

respondents No.1-A to 1-EE, learned Advocate Mr. Joyeb I. Shaikh

for respondent No.2 and learned Advocate Mr. V. S. Bedre for

respondent No.3. In order to cut short, it is stated that all of them

4 CA 7221-2020, SAST 1858-2019, CA 7222-2020

have made submissions in support of their respective contentions.

7. It can be seen that the original plaintiffs No.1 and 2 had

initially filed the suit for perpetual injunction simpliciter in respect of

agricultural land bearing Gut No.641/1 admeasuring 1 H 55 R

situated in Devlali Pravara and house property No.2142 admeasuring

1053 Square Meters situated in the same village. However,

subsequently the prayer for recovery of possession and mandatory

injunction as well as mesne profits has been added. The original

plaintiffs claimed that they are the co-sharers and owners of the suit

property as well as suit house. They had taken electric connection

about 15 to 16 years ago. They received notice on 07-04-2000

issued by the defendants directing them to remove the suit house.

Threat was given that they would demolish the suit house if it is not

removed/demolished. It was further contention that during the

pendency of the suit, they had applied for measurement of their

property and it was found that there is encroachment by the

defendants to the extent of 3 R portion of the suit land by

constructing shopping complex. Therefore, they added the prayer of

removal of encroachment, possession and mesne profits to the

extent of 3 R land.

5 CA 7221-2020, SAST 1858-2019, CA 7222-2020

8. The defendants by their written statement denied all the

allegations. It has been contended that they had constructed the

drainage and road within the limits of their property Gut No.1622

but they made allegation that plaintiffs are encroaching upon their

land and caused obstruction to the construction of the drainage. It

is stated that after getting knowledge that defendant No.1 would

likely to remove the encroachment, the plaintiffs have filed false

suit. It is stated that the shopping complex has been constructed

within the limits of the council's property and it was constructed

about 30 years ago. The plaintiffs did not object to the same and

then they had also contended that since plaintiffs never objecting to

the same, they have become owner of the land beneath the

shopping complex by adverse possession. It is also stated that the

persons to whom the shops have been allotted, are also necessary

party to the suit as their interest would be affected. The suit is also

not tenable without serving notice under Section 304 of the

Maharashtra Municipalities Act.

9. As aforesaid, after the pleadings, issues came to be framed

and parties have led oral as well as documentary evidence. The

learned Trial Judge held that the plaintiffs are in lawful possession

6 CA 7221-2020, SAST 1858-2019, CA 7222-2020

over the suit house. The defendants are causing obstruction to their

peaceful possession. The suit is not hit by the provisions of Section

304 of the Maharashtra Municipalities Act. Defendants have failed to

prove that the plaintiffs have made illegal construction in Gut

No.1622. Plaintiffs have proved that the defendants have made

encroachment over the suit property and, therefore, they are

entitled to get possession of the encroached area from defendant

No.1. Plaintiffs are also entitled to get mandatory injunction,

accordingly the suit was partly decreed and the First Appellate Court

has maintained that decree.

10. Perusal of the issues framed as well as points for

determination framed by the First Appellate Court, especially in view

of the discussion of the First Appellate court in respect of point No.1,

it is very much clear that the learned Trial Judge had not framed the

issue of ownership over the suit property. Important point to be

noted is that though the initial suit was for simpliciter injunction, yet

by way of amendment, removal of encroachment to the extent of 3

R, was also prayed. Under the said circumstances, unless the

plaintiff show that they are the owners of that 3 R land, or in other

words, unless the plaintiff prove that the said land of 3 R is of their

7 CA 7221-2020, SAST 1858-2019, CA 7222-2020

ownership and then it has been encroached upon by defendants

No.1 and 2. There could not have been a decree of removal of

encroachment and possession. Unless the person is having

ownership over the disputed encroached area, he cannot seek its

removal and possession. Though the First Appellate court has

observed that no issue to the effect that whether plaintiffs proved

their ownership to the suit land was framed by the learned Trial

Judge, yet no attempt was made to reassess the evidence in order

to see whether the plaintiffs have proved their ownership over 3 R

land. This point has been brushed aside on the basis of alternative

claim of the defendants wherein they had claimed ownership by

adverse possession over the said 3 R land. Learned Appellate Court

ought to have seen that initially there is denial to the averment

about encroachment by the defendants and then they were

contending that since the construction is there since more than 30

years and no objection raised by the plaintiffs, then in that case they

have become owner of the land beneath to the shops by adverse

possession. Therefore, definitely this point requires to be gone into

thoroughly by considering the entire evidence on record.

11. Plaintiffs had contended that they had received notice dated

8 CA 7221-2020, SAST 1858-2019, CA 7222-2020

07-04-2000 from the plaintiffs regarding demolition of the suit

house. In fact, why that notice was sent and whether the plaintiffs

have shown that they have made construction of their premises by

taking all the necessary permissions, appears to have been not

discussed at all by the learned Trial Judge as well as First Appellate

Court. No issue was framed by the Lower Court on this aspect nor

even the First Appellate Court has stated about it. One more aspect

that requires consideration is that though the Cadastral Surveyor

was examined as PW.3 and it appears that the map drawn by her

was exhibited, it had come on record that the said map was used in

Regular Civil Suit No.66 of 1995. Further, it also appears that when

the measurement was done on 11-04-2006 by the said officer, the

representatives of the plaintiffs as well as defendants were present

and then she has come to the conclusion that defendant No.1 has

made encroachment to the extent of 3 R. It is then also required to

be considered as to whether both the Courts below have considered

the point of ownership by adverse possession claimed by the

defendants. When it had come on record that the said construction

has been made by defendant No.1 about 30 years ago, therefore,

definitely substantial questions of law are arising in this case

requiring the second appeal to be admitted.

9 CA 7221-2020, SAST 1858-2019, CA 7222-2020

12. Civil Application No.7222 of 2020 is for 'Stay' to the impugned

Judgment and decree passed by the Courts below. In view of

admission of the second appeal, the parties are required to be

adequately protected.

13. For the aforesaid reasons, following order is passed.

ORDER

1) The delay caused in filing second appeal is hereby condoned subject to deposit of cost of Rs.5000/- (Five thousand) within a period of one (1) month from today. Application for delay condonation stands disposed of.

2) After the amount is deposited, the second appeal be registered and the amount so deposited be given to legal representatives of respondent No.1 i.e. 1/A to 1/EE on one part and respondent No.2 on the other part, equally.

3) Second appeal stands admitted. Following are the substantial questions of law :-

(A) Whether findings given by both the Courts below is perverse ?

(B) Whether the Courts below were justified in directing defendant No.1 to handover the possession to the plaintiffs without seeking declaration of ownership ? or in other words, Whether both the Courts below were justified in proceeding ahead without framing requisite

10 CA 7221-2020, SAST 1858-2019, CA 7222-2020

issue/point in respect of alleged ownership of the plaintiffs over 3 R land which is stated to be encroached by the defendants ?

(C) Whether the defendants in the alternative had proved ownership by adverse possession over 3 R land area ?

(D) Whether the suit for removal of encroachment to the extent of 3 R land was within limitation ? (E) Whether the suit was bad for notice under Section 304 of the Maharashtra Municipalities Act ?

                (F)      Whether interference is required ?


        4)      There shall be 'Stay' to the impugned decree passed by

both the Courts below till the hearing and disposal of the second appeal to the extent of removal of encroachment.

Application for 'Stay' stands disposed of.

        5)      Issue notice to the respondents.


        6)      Learned Advocate Mr. R. R. Karpe waives notice for
        respondents No.1-A to 1-EE.         Learned Advocate Mr. Joyeb I.

Shaikh waives notice for respondent No.2, and learned Advocate Mr. V. S. Bedre waives notice for respondent No.3.

(SMT. VIBHA KANKANWADI) JUDGE vjg/-