Bombay High Court
Ramchandra Ganpati Dhokare Decd. ... vs Bhagoji Ganpati Dhokare And Ors on 19 September, 2022
Bench: S. K. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10903 OF 2022
Ramchandra Ganpati Dhokare
Decd. Thr. LHRS. Smt. Kamal
R. Dhokare and Anr. ..... Petitioners
Vs.
Bhagoji N. Mane Deshmukh and
Ors. .....Respondents
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Mr. Suraj Kudalkar, Advocate for the petitioners.
Mr. Satish K. Kumbhar, Advocate for the respondents.
CORAM: SANDEEP K. SHINDE, J.
MONDAY, 19TH SEPTEMBER, 2022.
P.C.
1. Petitoner's Regular Civil Suit No.53/2010 for partition
was decreed on 30th December, 2019. Clause-6 of the
operative order reads as under :
"6. The house property i.e. Grampanchayat Property
No.781 be partitioned equitably in accordance with the
above declaration of shares by appointing a Court
Commissioner and the plaintiff be put in separate possession
of his share therein. Preliminary decree to that effect be
drawn up accordingly."
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2. The petitioner has carried this decree in Appeal and
it is pending for consideration. It is petitioner's case that, the
suit house was damaged due to cyclone. He relied on the
panchanama dated 7th August, 2019. It shows, due to
cyclone, damage was caused to the suit house. Admittedly,
this fact was not brought to the notice of the trial Court when
the judgment and decree was passed in Regular Civil Suit
No.53/2010.
3. It appears, the petitioner has been sanctioned loan
under the scheme of Central Government for
repairing/reconstruction of the suit house, which was
allegedly damaged in the cyclone. Accordingly, the petitioner
started repairing/reconstructing the house. Therefore, the
respondents herein instituted Regular Civil Suit No.6/2011
seeking a restraint order against the petitioner from
demolishing or reconstructing the suit house. An application
seeking temporary injunction to restrain the petitioner from
reconstructing the suit house was granted and confirmed in
Misc. Appeal by the District Judge-4, Kolhapur. The legality
and correctness of that order is questioned in this Writ
Petition. Learned Counsel for the petitioner submits that,
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both the Courts below have not considered the panchanama
dated 7th August, 2019, which clearly shows that the suit
house was damaged in the cyclone. It is submitted that, since
the house was substantially damaged, it was necessary to
repair and/or reconstruct the same. It is further submitted
that, he has carried out the repairs and/or reconstruction at
his own cost and consequences.
4. In consideration of the facts stated above, the fact
remains that the Decree in the first suit was passed on 30th
December, 2019; whereas the suit house was allegedly
damaged in cyclone on 7th August, 2019. Admittedly, the
petitioner was occupying the suit house and he ought to have
brought this fact to the notice of the learned Court while
passing the judgment and decree in the suit for partition
instituted by him.
5. As a matter of propriety, the petitioner ought to
have applied to the trial Court before changing the structure
or the nature of the suit house in respect of which the decree
was passed on 30th December, 2019. For all these reasons, I
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am not inclined to interfere with the impugned order. Writ
Petition is dismissed.
6. However, having regard to the facts of the case,
the petitioner is granted liberty to file an application before
the Appellate Authority seeking permission to repair and
reconstruct the suit house. If such an application in filed in
Regular Civil Appeal No. 65/2020, the learned District Judge,
Kolhapur shall decide the same in accordance with law after
hearing the parties. It may be stated that, the learned Judge
shall decide the said application independently on its own
merits, without being influenced by the order of this Court.
(SANDEEP K. SHINDE J.)
