Gopal Harikishan Zanvar And Anr vs Kadarkhan Mohammadkhan Pathan ...
2021 Latest Caselaw 15527 Bom

                                                                      ca7004.21, etc.
                                          (1)

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


                        CIVIL APPLICATION NO.7004 OF 2021
                                       AND
                        CIVIL APPLICATION NO.7005 OF 2021
                                        IN
                          FIRST APPEAL NO.3492 OF 2019


 Gopal S/o Harikishan Zanwar
 and anr.                                           ..APPLICANTS

          VERSUS

 Kadar Khan S/o Mohammad Khan Pathan,
 Since deceased, through his Legal Heirs
 and ors.                                           ..RESPONDENTS

 Mr. V.J. Dixit, Senior Advocate, instructed by Mr. S.S. Rathi, Advocate for
 applicants;
 Mr. R.S. Deshmukh, Senior Advocate, instructed by Mr. Shriram V.
 Deshmukh and Mr Devang R. Deshmukh, Advocates for respondents

                                        CORAM : RAVINDRA V. GHUGE
                                                       AND
                                                S. G. MEHARE, JJ.

                               (Date of reserving the order : 11.10.2021
                               Date of pronouncing the order :28.10.2021)


 ORDER (Per S.G. Mehare, J.)

1. Both these Civil Applications have been filed by original

respondents no.1 and 2 in the First Appeal. The suit for specific

performance of contract was decreed in favour of the present applicants by

the learned Civil Judge Senior Division, Latur. The respondents/

appellants have preferred the appeal against the said judgment and

decree. The Honourable Division Bench of this Court in Civil Application

No.13090 of 2019, passed the order which reads thus:-

ca7004.21, etc.

"There shall be interim relief in terms of prayer clause (B) during pendency of the appeal. The parties shall not create any third party interest over the suit property and shall not change the nature of the property."

2. In spite of having knowledge of this order, it is alleged that the

respondents-appellants are making every attempt to create third party

interest as well as erecting a structure and digging a bore-well in the suit

property and thereby changing the nature of the suit property. The

appellants are disobeying the prohibitory orders issued by this Court and

acting illegally. It is prayed to dismiss the appeal or in the alternative,

vacate the order passed in Civil Application No.13090 of 2019.

3. With the same facts in an another Civil Application No.7005 of

2021, the appellants prayed to issue the direction to the respondents

prohibiting them from changing further nature of the suit property and the

structure erected on the suit land be ordered to be demolished. To

bolster the contentions, the photographs have been placed on record.

4. Respondents no.1 to 7 have filed their affidavit-in-reply. Their

contention is that the shed for storage of agricultural produce, cattle shed

and water fit for human and cattle consumption are integral parts of

agricultural activities. There was a temporary tin shed and tree woods

shed standing on the suit property for storing agricultural produce and for

labourers to rest. It was temporarily erected 20 years back. It was in

extremely dilapidated condition. The agricultural produce was being

ca7004.21, etc.

damaged, causing huge loss to the respondents. The dilapidated shed

was beyond repairs and as such, the respondents erected tin shed for

storage of agricultural produce a resting place for the labourers. So also,

the respondents were required to repair the cattle shed which was already

existing in the suit land. There was no electrification within 500 to 700

Mtrs. from where the bore-well has been dug by the respondents. They felt

it reasonable and economical to get electrification through solar system.

Therefore, they installed a solar system. All these acts are ancillary to

agricultural activities. They have not done any act intentionally or mala

fide to violate any order of this Court.

5. In sum and substance, they would submit that the tin sheds have

been erected to protect the agricultural produce and for rest of the labours

and for improvement of the agricultural operations they have dug the bore-

well and installed the solar system. The activities being ancillary to the

agricultural activities do not change the nature of the suit property. It does

not amount to change in the nature of the suit property.

6. Heard the learned Senior Counsel Shri Dixit for the applicants and

the learned Senior Counsel Shri Deshmukh for the respondents at length.

7. Learned Senior Counsel for the applicants would submit that the

activities of the respondents are apparently going to change the nature of

the suit property. Erection of the tin shed at new place is also changing the

nature of the suit property. There was no bore-well or the solar plant but

the respondents intend to change the nature of the property and may bring

ca7004.21, etc.

hurdle in the execution of the decree. The amount as directed by the Court

of first instance has been deposited there at Latur, which may be directed

to be invested in the fixed deposit. Referring to the photographs he would

argue that prima facie erecting a structure is a permanent structure.

8. It is admitted by the respondents that some tin sheds have been

erected but those are erected as the old tin sheds were in dilapidated

condition. The activities which they are going to do are absolutely not

changing the nature of the suit land. The suit land was used for

agriculture purpose and is still used for the same purpose. So far as the

apprehension in the mind of the applicants that there shall be an

obstruction in the execution of the decree due to the activities done by the

respondents, is without foundation. All structures are temporary. On the

same line, he has argued that in order to attract the action under Order

XXXIX Rule 2A of the Code of Civil Procedure, the prohibitory order shall

be served on the party against whom the action is claimed or proposed.

There are no grounds either to dismiss the appeal or to vacate the stay.

There are also no circumstances to direct the respondents to remove the

tin sheds.

9. The contention of the learned Senior Counsel Shri Deshmukh that to

initiate action for breach of prohibitory order, the service of the order is

mandatory, may be correct in case the Court passes an ex parte order

without notice. Herein a case, this Court has passed the prohibitory order

when the respondents sought a 'stay' to the execution of the decree. In

such situation, it is difficult to accept that the respondents had no

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knowledge of the prohibitory order passed by this Court. The photographs

at page nos.10, 11 and 12 clearly show that there was an old tin shed and

one hut in the field. The photographs clearly prove that the old structure is

kept as it is and instead of repairing it, two new sheds have been erected

at another place. No doubt, the sheds are required for storing the

agricultural produce. Looking at the photographs, now shed does not

seem fit to be used to store the agricultural produce. The solar structure

has the cement foundation and bore-well is also seen dugged. All these

activities have been admittedly done by the respondents. The activities

done with knowledge are definitely deliberate.

10. Hence, we do not find substance in the submission that the sheds

are raised without intention and knowledge. Prima facie, we feel that the

tin sheds have been erected embedding poles in the land, hence it is a

permanent structure. In fact, since the respondents were having

knowledge of the prohibitory order passed by this Court while granting the

interim relief, they ought to have sought the permission of this Court

before carrying out any activity.

11. There is prima facie case to believe that the activities of the

respondents are intentional and deliberate. If they would have repaired the

old structure then the case would have been different. So far as the

agricultural activities are concerned, it is the right of possessor to cultivate

the land. Digging a bore-well is also an unauthorized activity committed by

the respondents, but may not change the nature of suit property and cause

serious prejudice to the appellants.

ca7004.21, etc.

12. In the light of the above, we believe that the activities of the

respondents, as mentioned above, are deliberate and intentional and in

breach of the prohibitory orders issued by this Court. However, we are of

the opinion that vacating the stay would serve no purpose. The tin sheds

erected unauthorizedly may be directed to be removed.

13. Hence, we pass the following order:-

ORDER

1) Civil Application No.7004 of 2021 is dismissed.

2) Civil Application No.7005 of 2021 is partly allowed.

3) The respondents are directed to remove the tin sheds as shown in

photographs at page nos.10 to 12 of the paper-book, within fifteen days

from today.

4) The respondents are further directed not to commit any activity in

the suit land in breach of the interim protection granted by this Court on

conditions, henceforth.

5) The Civil Judge Senior Division, Latur is directed to invest the

amount deposited by present applicants in fixed deposit as per the

provisions of the Civil Manual.

  (S. G. MEHARE, J.)                          (RAVINDRA V. GHUGE, J.)

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