Sadashiv @ Shahaji Kisanrao ... vs Arun Dattatraya Futane
2021 Latest Caselaw 12278 Bom

                                     (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    SECOND APPEAL NO.350 OF 2021
                                with
                 CIVIL APPLICATION NO. 9903 OF 2015.

 Sadashiv @ Shahaji Kisanrao Tantak
 (Kasar)                                         = APPELLANT
                                                 (Orig.Plaintiff)

          VERSUS

 Arun Dattatraya Futane                          = RESPONDENT/S
                                                 (Orig.Defendant)
                                     -----
 Mr.Satyajit S.Bora,Advocate for Appellant;
 Mr.NV Gaware,Advocate for Respondent
                                    -----

                                CORAM :      SMT.VIBHA KANKANWADI,J.

                                DATE :       1st September, 2021.
 PER COURT :-

1. Present appeal has been filed by original plaintiff, challenging judgment and decree passed in RCA No.290/2008 by learned Principal District Judge, Ahmednagar on 16.7.2014, thereby the appeal filed by the present Respondent - original defendant, came to be allowed. The judgment and decree passed by the learned Trial Judge came to be set aside and modified, thereby the defendant was restrained from interfering with the plaintiff's possession over the suit land and another order is also passed that the plaintiff is directed not to obstruct possession of the defendant over the land Gut No.1198 or to take into possession any further portion of the said land. The present appellant- original plaintiff had filed RCS No.82/2002 before

Civil judge, Junior Division, Jamkhed, Tq. Jamkhed District Ahmednagar for perpetual injunction. The said suit was decreed on 7.10.2008.

2. Heard learned Advocates appearing for the respective parties. In order to cut short it can be stated that both of them have made submissions in support of their respective contentions.

3. At the outset, it is to be noted that both the Courts below are not concurring with the findings, in a sense, that the first Appellate Court has set aside the judgment and decree passed by the learned Trial Judge and modified it. It is, therefore, required to be seen as to whether there was absolutely necessity for the first Appellate Court to interfere with the decree passed by the learned Trial Judge. The T.I.L.R. map, which was though on record, according to the plaintiff, it was not proved at all; yet it appears that the learned first Appellate Court had made the said measurement map dated 29.8.2001 as part of the decree. The learned Principal District Judge, not only restrained the defendant from interfering with the plaintiff's possession over the suit land Gut No.1198, inclusive of demarcated portion shown in the map, but also directed the plaintiff not to obstruct the possession of the defendant over the land Gut No.1198 or take possession of any further portion of the said land. It is to be noted that the subject matter of the suit, i.e. suit land was

Gut No.1197, admeasuring 6.18 Ares, situated within the jurisdiction of Jamkhed. The defendant was owner of the land Gut No.1198 and according to the plaintiff, the properties are separated by Bandh, which is in existence since forefathers. The defendant got his land measured through T.I.L.R.. According to the plaintiff, the measurement is not finalized. According to the plaintiff, the defendant obstructed cultivation of the plaintiff to the extent of 20 feet adjacent to north-south Bandh, alleging that the said property is shown to be part of his property by T.I.L.R. The defendant had filed the written-statement-cum-counter claim, contending that the plaintiff has encroached upon the land of the defendant to the extent of 0.40 Ares. According to the defendant, the plaintiff has taken illegal possession of the disputed land and he cannot claim injunction in respect of the same. It can be seen that the learned Trial Judge has not stated anything regarding the relief in the counter claim in the operative part and, therefore, it will have to be taken as refused. However, the first Appellate Court decreed the suit partly as well as decreed the counter-claim partly. Therefore, question is, when the T.I.L.R. map was not proved at all, whether such decree could have been modified? Hence, a case is made out to admit the Second Appeal as it is raising substantial questions of law, as contemplated under Section 100 of CPC.

4. The Second Appeal stands admitted.

Following are the substantial questions of law, -

i. Whether the first Appellate Court justified in interfering with the judgment and decree passed by the learned Trial Judge ?

                  ii.           Whether       the         first         Appellate
                  Court,       in   absence     of     proof         of     Map      of

T.I.L.R. in respect of Gut No.1198, could have made it as part of the decree ?

iii. Whether the decision by the learned Trial Judge needs to be restored.

5. Issue notice to the respondent after admission of the Second Appeal.

6. Learned Advocate Mr. Gaware waives notice for the respondent.

7. Civil Application for stay of the impugned decree can be heard at the time of final hearing of the appeal.

8. In view of the progress in the case, it will not be out of place to mention here that there was an application for condonation of delay, which came to be allowed by this Court on 2nd August, 2021 and, therefore, at this stage, this Court need not go into the aspect as to who is in possession of the land. The suit is also partly decreed and

the original defendant has not filed any appeal and, therefore, the Civil Application for stay be heard along with this appeal.

(SMT. VIBHA KANKANWADI) JUDGE

BDV