Vithal Sitaram Gore Deceased ... vs The Sarpanch Gram Panchyat ...
2021 Latest Caselaw 12661 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                         CIVIL APPLICATION NO.8148 OF 2020
                                         IN
                           SECOND APPEAL NO.814 OF 2006


VITTHAL SITARAM GORE, DECEASED, THROUGH LR BABASAHEB VITTHAL
                                      GORE
                                     VERSUS
                             THE SARPANCH AND ANOTHER
                                        ...
Mr. S.S. Kulkarni, Advocate h/f Mr. S.D. Kulkarni, Advocate for the applicant
         Mr. P.R. Nangare, Advocate for respondent Nos.1 and 2 in SA
                                        ...

                                   CORAM :    SMT. VIBHA KANKANWADI, J.
                                   RESERVED ON       : 03rd AUGUST, 2021.
                                   PRONOUNCED ON : 06th SEPTEMBER, 2021.


ORDER :

1 Present application has been filed by the appellant-original

plaintiff for issuing directions to the respondents or their agents, servants or

claiming through them for not to change the nature of suit house No.276

admeasuring 140 x 100 sq.ft. situated in village Ralegan Therpal, Tq. Parner,

Dist. Ahmednagar, till the decision of the Second Appeal and other

consequential reliefs.

                                            2                                    CA_8148_2020



2                 Heard learned Advocate Mr. S.S. Kulkarni holding for learned

Advocate Mr. S.D. Kulkarni for the applicant and learned Advocate Mr. P.R.

Nangare for respondent Nos.1 and 2.

3 It has been submitted on behalf of the applicant that the Second

Appeal has been admitted by this Court by framing substantial questions of

law. The respondents are now trying to change the nature of the suit

property, taking advantage of the fact that the suit filed by the present

appellant-applicant was dismissed and her appeal has also dismissed by the

First Appellate Court. Tender has been issued and the respondents intend to

construct shopping complex at the suit site. The respondents have started

work and the action has been taken just to frustrate the claim of the

applicant. It is stated that the respondents have not taken mandatory

permission to make such kind of construction and, therefore, now, the status

quo at the spot is required to be maintained.

4 Per contra, the learned Advocate appearing for the respondents

submitted that the Courts below have held that the plaintiff-appellant has

failed to prove the location of the property, which according to him, belongs

to him. Now, by showing some other property, which is the property of the

Grampanchayat, the applicant intends to stall the proceedings. Necessary

permissions have been taken. In fact, the Grampanchayat by its resolution in

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the meeting dated 31.08.2020 granted permission to Ralegan Gram Vikas

Manch, to construct shopping complex in Grampanchayat property No.12,

situated at Ralegan Therpal and property No.133 situated at Hakigatpur. The

resolutions have been produced on record. Necessary permissions have been

sought from Zilla Parishad. The appellant-applicant with intent to grab the

property on the basis of some such entries, which he could not justify before

the First Appellate Court as well as Trial Court, is coming with this

application, it deserves to be rejected.

5 At the outset, it is to be noted that the present applicant-

appellant had filed Regular Civil Suit No.336/1991 before Civil Judge Junior

Division, Parner for declaration, perpetual injunction as well as mandatory

injunction. He claimed that the suit property Grampanchayat House No.276

is his ancestral property. He used to pay house tax to the Grampanchayat,

however, on 30.11.1991 the Grampanchayat passed illegal resolution and

gave the suit site i.e. open plot to defendant No.2 for Rs.5,000/-. Defendant

No.2 had started digging foundation in the suit site, at that time and,

therefore, the suit was filed. The defendants resisted the claim of the

plaintiff by filing written statement. The description of the property was

changed and it is specific say that the name of the plaintiff to the said

property was hallow. Both the Courts below have considered the evidence

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led by both the parties and come to the conclusion that the plaintiff has failed

to prove that suit property is his ancestral property. It is also held that the

plaintiff has failed to prove that defendant No.1 has made illegal transaction

on 30.11.1991 by giving the said property to defendant No.2 by receipt of

Rs.5,000/-. It was also held that the plaintiff has failed to prove that

defendant No.2 has made illegal construction on the suit property. Plaintiff is

not possessing the suit property and, therefore, the suit was dismissed. If we

consider the Judgment, it is stated that the plaintiff has neither proved the

title nor he is entitled to get any relief claimed. When the existence of the

property itself is in question, then the question arises, as to whether such

injunction can be granted, at this level. The documents showing the name of

the present plaintiff-appellant to the property extract of the Grampanchayat

to Gat No.276 has been produced, however, it is to be noted that the present

respondents have also produced on record documents, to show that what

they are erecting is on the plot numbered as 12 and 133. Necessary

permissions have been taken for the construction. It is to be noted that even

at the time when the suit was before the Trial Court, there was construction

in the disputed site. Yet, mandatory injunction appears to have been prayed,

which was not granted, in fact, suit in its entirety was dismissed. It has not

been pointed out by the appellant-applicant, at this stage, that after the

dismissal of the suit he had sought injunction or status quo in respect of the

5 CA_8148_2020

suit property, till the decision of the appeal. When this Court admitted the

Second Appeal by framing substantial questions of law, at that time also, no

civil application was filed for injunction or in anticipation that the property

should remained as it is, till the decision in Second Appeal. Under such

circumstance, even if this Court had come to the conclusion that substantial

questions of law are made out; yet, definitely, the facts and circumstances

before this Court are not such that any interim protection as claimed should

be granted to the plaintiff. Both the Courts below have consistently held that

the existence of the property as described in the suit has not been proved.

Therefore, the applicant is not entitled to get any such relief, as claimed.

Application, therefore, stands rejected.

( Smt. Vibha Kankanwadi, J. )

Date : 06.09.2021.

Later on :

6 Learned Advocate for the applicant, after the pronouncement of

the order, pressed for continuation of the interim protection. It is to be noted

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that the applicant is the original plaintiff, whose suit came to be dismissed

and thereafter his appeal has also been dismissed. However, in view of the

subsequent developments, when the respondents issued tender, this Court

had directed the parties to maintain status quo. The respondents intend to

construct shopping complex and it was contended that it is at the suit site. It

has been specifically noted by this Court that when the Second Appeal was

admitted by this Court, even at that time, there was no application filed for

injunction or in anticipation that the property should remain as it is, till the

decision of the Second Appeal. It can be seen that when the suit was before

the Trial Court itself, there was construction on the disputed site. Though

mandatory injunction was prayed, it was refused. Basically, both the Courts

below have gone on the point that the description of the property has not

been proved. By order dated 11.12.2020, when interim order was passed, it

was in these words, "In the meantime, the respondents are directed to

maintain status quo in respect of the suit property exists as on the date of

communication of this order." It can be seen that there was no reference to

any documentary evidence produced by the present applicants, regarding

what was the construction and what was the position at the suit site. Though

a photo copy of a photo having pits appears to have been produced, however,

it does not show the date, on which the photograph was taken. Under such

circumstance, though this Court had earlier passed the order of status quo,

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the details of the specific property have not been stated, now, it cannot be

extended. Oral request is, therefore, rejected.

( Smt. Vibha Kankanwadi, J. )

agd