Laxmibai @ Lahanabai Baliram ... vs Lilasar S/O Harichandra Pachare ...
2022 Latest Caselaw 4436 Bom

                                                   CORRECTED-3.wp262.2021jud.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                    WRIT PETITION NO. 262 OF 2021

1. Smt. Laxmibai @ Lahanabai
Baliram Nanhe, aged about 68 years,
Occ.: Labour
2. Deepak s/o Baliram Nanhe                      .. Petitioners
aged 45 years, Occupation Labour,
Both resident of Nehru Ward, Ruyal,
Tahsil Pauni, District Bhandara.
                Versus
1. Lilasar s/o Harichandra Pachare
aged about 40 years,
Occupation Cultivation,
resident of Ruyal, Tahsil Pauni,
District Bhandara.
2.Village Panchayat, Ruyal,                     .. Respondents
through its Secretary, Tahsil Pauni,
Dist. Bhandara.
3. Sarpanch, Village Panchayat, Ruyal,
Both resident of Ruyal, Tahsil Pauni,
District Bhandara.

Mr. Vasant D. Muley, Advocate for petitioners.
Mr. H.A. Khedikar, Advocate for respondent Nos.1 to 3.

                           CORAM :       MANISH PITALE, J.

                            DATED :      27.04.2022.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel appearing for the rival parties.

PAGE 1 OF 8 CORRECTED-3.wp262.2021jud.odt

(2) By this writ petition, the petitioners (i.e. original

plaintiffs) have challenged concurrent orders passed by the two Courts

below whereby an application for grant of temporary injunction filed

by the petitioners was dismissed.

(3) The petitioners filed suit for declaration and

permanent injunction against the respondents, wherein it was alleged

that the respondent No.1 had illegally started construction on a piece

of land, which was regularized in favour of the petitioners by a specific

order of the competent authority. It was claimed that the respondent

No.1 undertook construction illegally and upon noticing the same the

petitioners filed the aforesaid suit. In the said suit, an application for

temporary injunction was filed, seeking direction to restrain the

respondent No.1 from continuing with the construction during

pendency of the suit.

(4) The petitioners placed on record documents before

the trial Court to show that the suit property was Government land on

which the competent Authority had passed an order of regularization

in favour of the petitioners. A certificate issued by the Talathi stating

that such piece of land stood regularized in favour of the petitioners, in

PAGE 2 OF 8 CORRECTED-3.wp262.2021jud.odt

terms of the order passed by the competent Authority, was also placed

on record before the Courts below. The petitioners claimed that the

said land admeasured 2178 sq. ft.

(5) The respondent No.1 filed his written statement

before the trial Court and came up with a positive cace that insofar as

the suit property was concerned, a Sale-Deed dated 12.12.1958 had

been executed in favour of his predecessor and that is how, he was

entitled to the said piece of land.

(6) By order dated 28.08.2020, the trial Court rejected

the application for temporary injunction at Exhibit 5. It was observed

that prima facie the possession and not ownership of the petitioners

was shown in the suit property. The trial Court referred to the

Government Scheme and held that since appropriate order sanctioning

relief in favour of the petitioner was not issued under the said Scheme,

no case for grant of temporary injunction was made out.

(7) Aggrieved by the same, the petitioners filed appeal

before the District Court but, the appeal was dismissed and

observations were made against the petitioners as regards prima facie

case.

PAGE 3 OF 8 CORRECTED-3.wp262.2021jud.odt

(8) Mr. Muley, learned counsel appearing for the

petitioners, invited attention of this Court to the contents of the plaint,

the written statement and the documents issued by the competent

Authority as well as the Talathi. It was submitted that the said

documents made out a strong prima facie case in favour of the

petitioners, which the Courts below failed to appreciate. It was

submitted that there was not even an iota of material produced on

record by the respondent No.1 to support the positive statement made

in the written statement regarding right in the suit property on the

basis of the Sale-Deed allegedly executed in favour of the predecessor

of respondent No.1. On this basis, it was submitted that the impugned

orders deserved to be set aside.

(9) Mr. Khedikar, learned counsel appearing for

respondent No.1 submitted that the trial Court, as well as the appellate

Court considered the case of the petitioners on the well known

parameters for grant of temporary injunction and it was found that the

material on record did not support the case of the petitioners for grant

of temporary injunction. It was submitted that when the petitioners

had raised grievance regarding the alleged illegal construction being

PAGE 4 OF 8 CORRECTED-3.wp262.2021jud.odt

undertaken by respondent No.1 in the first instance before the police,

no such claims were made and no document was produced, upon

which the petitioners later placed reliance in the suit filed before the

trial Court. It was submitted that therefore, no interference was

warranted.

(10) This Court has perused the material on record in the

backdrop of the submissions made on behalf of the rival parties. In

order to be examined whether the petitioners deserve an order of

temporary injunction in their favour, the Courts below were expected

to analyze the material on record to reach prima facie findings on the

well known parameters for grant of temporary injunction. A perusal

of the concurrent orders passed by the two Courts below show that the

material relied upon by the rival parties while making competent

claims, was not appreciated in the correct perspective. While the

petitioners placed on record documents issued by the competent

Authority, as also the Talathi, demonstrating the right of the petitioners

in the suit land, the positive case stated by the respondent No.1 in the

written statement was not supported by any document on record. In

the light of the fact that the respondent No.1 specifically pleaded that

PAGE 5 OF 8 CORRECTED-3.wp262.2021jud.odt

there was indeed a Sale-Deed in favour of his predecessor as regards

the very suit property, it was incumbent upon the respondent No.1 to

produce some material to support such a positive stand taken in the

written statement.

(11) But, no such material was placed on record on

behalf of respondent No.1. In this backdrop, it was expected that the

Courts below would consider the documents placed on record by the

petitioners to examine as whether a prima facie case was made out.

The trial Court erred in observing that prima facie possession and not

ownership of the petitioners was shown in the suit property. There

was no reason for the trial Court to reach the said finding in the face of

the material placed on record by the petitioners. The appellate Court

also erred in holding against the petitioners. On all the three

parameters for grant of temporary injunction i.e. strong prima facie

case, grave and irreparable loss that petitioners may suffer in the

absence of an order of temporary injunction and balance of

convenience, were all demonstrated in their favour by the petitioners,

which the Courts below failed to appreciate in the correct perspective.

Therefore, it is found that the impugned orders are unsustainable and

PAGE 6 OF 8 CORRECTED-3.wp262.2021jud.odt

that the application for temporary injunction at Exhibit-5 ought to

have been allowed.

(12) Accordingly, the writ petition is allowed.

(13) The impugned orders are quashed and set aside.

But, it appears that during the pendency of the proceedings before the

two Courts below, the respondent No.1 proceeded with the

construction and it reached a particular level till on 19.01.2021, this

Court directed the parties to maintain status quo. Therefore, it would

be appropriate that while allowing this writ petition, suitable

directions are given to the trial Court to dispose of the suit

expeditiously.

(14) In the view of the above, the writ petition is allowed

in above terms. The trial Court is directed to dispose of the suit filed

by the petitioners at the earliest. During pendency of the suit, the

parties shall continue to maintain status quo as on 19.01.2021.

(15) Needless to say, the trial Court shall proceed on

merits of the matter without being influenced by the observations

PAGE 7 OF 8 CORRECTED-3.wp262.2021jud.odt

made in this order.

(16) Rule is made absolute in above terms. No costs.

[ MANISH PITALE J.]

Prity Digitally signed by PRITY S GABHANE PRITY S Date:

GABHANE 2022.04.29 12:00:46 +0530

PAGE 8 OF 8