Bombay High Court
Noor Ratan Patel And Ors vs Qaisaruddin Daud Siddiqui And Ors on 20 October, 2021
Bench: R. G. Avachat
Appeal from Order No.15/2020
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO.15 OF 2020
Noor Ratan Patel & ors. ... APPELLANTS
VERSUS
Qaisaruddin s/o Daud Siddiqui & ors. ... RESPONDENTS
.......
Shri A.D. Kasliwal, Advocate for appellants
shri S.V. Natu, Advocate for respondents No.1 and 2
.......
CORAM : R. G. AVACHAT, J.
DATE : 20th OCTOBER, 2021
ORDER:
The challenge in this appeal is to the order dated
18/1/2020, passed by District Judge-7, Aurangabad on
application Exh.11 in Regular Civil Appeal No.98/2018. Vide
impugned order, the appellants, original defendants in Regular
Civil Suit No.117/2020 have been restrained from carrying out
construction on the suit property.
2. Heard. Learned counsel for the appellants,
original defendants would submit that, the respondents/
original plaintiffs' suit for possession of the land described in
Appeal from Order No.15/2020
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paragraph No.1 of the plaint has been dismissed by the trial
Court on merits. The appellants/ defendants are alleged to
have made encroachment on the land belonging to the
respondents/ plaintiffs. The Cadastral Surveyor had
measured the land. Since he did not find any encroachment,
he was not examined in the suit. Instead of asking for
Nimtana measurement, the respondents/ plaintiffs examined
private surveyor, who had measured the land. The Trial Court
rightly disbelieved the evidence of the Surveyor to dismiss the
suit. As such, the plaintiff respondent failed to make out a
case of the suit land to have belonged to him. In such
circumstances, the appellate Court ought not to have granted
application Exh.11 to restrain the appellants/ defendants from
making any construction on his own land. The learned
counsel, therefore, urged for setting aside the impugned
order.
3. Learned counsel for the respondents/ plaintiffs
would, on the other hand, submit that, both the parties to this
appeal have purchased the land in Survey No.32/1. The
respondents/ plaintiffs' sale deed is first in point of time. He
would further submit that, the application for measurement of
the land has again been moved. If the appellants/ defendants
are permitted to make construction on the suit land, it would
Appeal from Order No.15/2020
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necessarily cause irreparable loss. The learned counsel relied
on the Apex Court judgment in case of Maharwal Khewaji
Trust (Regd.), Faridkot Vs. Baldev Dass reported in [ (2004) 8
SCC 488 ].
4. Considered the rival submissions. Perused the
impugned order. Gone through the documents relied on. The
respondents/ plaintiffs filed the suit for possession of the land
alleged to have been encroached by the appellants/
defendants. They have been unsuccessful in the suit. The
Government Surveyor, who measured the land, did not find
any encroachment. He was, therefore, not examined as a
witness in the suit. The land was then measured by private
surveyor. He was examined as a witness. The Trial Court did
not believe his evidence. The suit, therefore, came to be
dismissed. The suit dates back to the year 2010. The same
is pending in first appeal. As of today, there is prima facie
nothing to suggest that the land on which the appellants/
defendants had initiated construction belonged to the
respondents/ plaintiffs. In such circumstances, the first
appellate Court ought not to have curtailed the appellants/
defendants' propitiatory right to use their own land as they
wish.
Appeal from Order No.15/2020
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5. There can be no dispute over the observations of
the Apex Court in case of Baldev Dass (supra), it has been
observed by the Apex Court that,
"Likelihood of nature of property being
changed, including by alienation or transfer
thereof - Such change of the status quo, when
permissible - Power of Court to grant damages
to compensate non-issue of injunction when
case of the party opposing the injunction is
baseless, on motion of party, and suo motu -
Held, unless and until a case of irreparable loss
or damage is made out by a party to the suit, the
Court should not permit a change of the said
status quo, which may lead to loss or damage
being caused to the party who may ultimately
succeed, and may further lead to multiplicity of
proceedings - In any event, it is always open to
the other party to claim damages if the case of
the party pleading a maintenance of the status
quo is ultimately found to be baseless or, in an
appropriate case, the Court may itself award
damages for the loss suffered, if any, in this
regard - On facts, no such case of irreparable
loss made out - The contention that the legal
proceedings are likely to take a long time,
therefore the suit property should be permitted
to be put to good use, is not good enough."
6. Each case has to be decided on its own facts and
circumstances. In the case in hand, the respondents/
plaintiffs have yet not been able to make out a prima facie
case to suggest that the land on which the appellants/
defendants had initiated construction belonged to the
Appeal from Order No.15/2020
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respondents/ plaintiffs. Needless to mention, whatever
construction that would be made by the appellants/
defendants, would be subject to outcome of the suit. They
will have to raze the same if it is found to be an encroachment
on the suit land.
7. For all these reasons, interference with the
impugned order is called for. In the result, the appeal
succeeds. The same is allowed. The order dated 18/1/2020,
passed on application Exh.11 in Regular Civil Appeal
No.98/2018 is hereby set aside.
( R. G. AVACHAT )
JUDGE
fmp/-
