Bombay High Court
Gagansingh Indarsingh Asarjanwale ... vs Bhagindrasingh Gurucharansingh ... on 22 December, 2023
2023:BHC-AUG:27135
1 920.WP-14488-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14488 OF 2023
Gagansingh s/o Indarsingh Asarjanwale
Died through his LR's
1. Sau. Balwantkaur w/o Gagansingh Asarjanwale
2. Surendrasingh s/o Gagansingh Asarjanwale
3. Narendrasingh s/o Gagansingh Asarjanwale ..Petitioners
VERSUS
1. Bhagindrasingh s/o Gurucharansingh Ghadisaj
2. Gurucharansingh s/o Uttamsingh Ghadisaj
3. The Commissioner,
Waghala Municipal Corporation,
Nanded. ..Respondents
...
Advocate for Petitioner : Mr. S.S. Bora h/f Mr. V.S. Badakh
Advocate for Respondents : Mr. S.V. Kurundkar h/f
Mr. S.S. Kurundkar
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 6th DECEMBER 2023.
PRONOUNCED ON : 22nd DECEMBER 2023.
JUDGMENT :
. Rule.
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2. Rule is made returnable forthwith. Heard finally with
the consent of the parties.
3. The petitioners are challenging concurrent finding of
facts recorded by both the Courts below for rejecting
their prayer for temporary injunction. The petitioners are
the original plaintiffs and they are prosecuting Special
Civil Suit No.55/2023 for declaration and injunction before
the Civil Judge, Senior Division, Nanded. Their
application for temporary injunction at Exhibit-5 was
rejected by the trial Court on 02.05.2023. Being
aggrieved, they preferred MCA No.43/2023. It was
dismissed by judgment and order dated 01.11.2023 by
the learned District Judge - 2, Nanded. Hence they
are before this Court.
4. The cause of action for filing suit for the petitioners
is the encroachment allegedly made by the respondent
no.1 who is owner of CTS No.16329 located on the
Western Side of the house property belonging to the
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petitioners bearing CTS No.16330. An encroachment is
stated to be of about 2x131=262 sq.mtrs. from the
Western Side. The respondent no.1 is constructing his
house by committing the encroachment. The respondent
no.1 has purchased CTS No.16329 from the respondent
no.2 by sale deed dated 05.06.2013.
5. It is the case of the respondents that there is no
encroachment and no cause of action for the petitioners.
A defective suit is filed in the name of dead person.
The petitioner no.1/ Sau. Balwantkaur w/o Gagansingh
Asarjanwale was signatory to the sale deed dated
05.06.2013 and conversant with the boundaries. By
securing due permission from the Planning Authority,
construction is being carried out.
6. The learned Counsel for the petitioners submits that
both the Courts below committed error of jurisdiction and
passed perverse order, rejecting application for temporary
injunction. The petitioners are owners of CTS No.16330
measuring 197.5 sq.mtrs. The respondent no.1 is infact
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owner of CTS No.16329 measuring 148.1 sq.mtrs. only.
It was wrongly got enhanced to 181.22 sq.mtrs. and got
recorded it in the property extract. In the sale deed
dated 05.06.2013, the vendor respondent no.2 mentioned
total area of 209.1 sq.mtrs. of City Survey No.16329.
7. The learned Counsel vehemently submits that taking
disadvantage of excess area mentioned in the sale deed
and erroneous order passed by the Deputy Collector on
24.08.2023, the respondent no.1 has encroached
petitioners' passage and carrying out the construction.
He would further submit that the order of correction of
area passed by the Deputy Collector on 24.08.2023 is
against principles of natural justice and obtained by
misrepresentation. It was order against the dead person.
It is further submitted that the respondent no.1 has
construction permission of 148.1 sq.mtrs. only. It is also
submitted that the findings recorded by both the Courts
below relying upon the consent of the petitioner no.1
and construction permission are unsustainable.
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8. Learned Counsel for the respondents repelled the
submission of the petitioners by submitting that both the
Courts below have recorded concurrent findings of facts
against the petitioners. The suit is defective in nature.
The petitioners are not legal heirs. There is no material
on record to show that the petitioners are in possession
of so called encroached area.
9. The respondent no.1 is the owner as per sale deed
dated 05.06.2013. A construction permission is secured
by him from the respondent no.3. The area of CTS
No.16293 was wrongly mentioned in the record of right
to be 148.10 sq.mtrs. By the order passed by
Additional Collector, Nanded on 24.08.2023, it is
corrected to 181.22 sq.mtrs. No appeal is preferred
against the same order. The petitioner no.1 is estopped
from alleging encroachment as she is one of the
signatories on the sale deed. It is further submitted
that slab level construction has been made but due to
order of status-quo, it is haulted. The respondent is
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suffering irreparable loss. He would therefore pray to
dismiss the petition.
10. I have considered rival submissions of the parties
advanced across bar. Both the Courts below have
recorded following concurrent findings :
(i) The petitioner no.1 is signatory as a consenting
party on sale deed dated 05.06.2013. She is estopped
from alleging encroachment.
(ii) There is construction permission in favour of
respondent no.1.
(iii) There is no material to show that the petitioners
are in possession of encroached area.
11. The Lower Appellate Court has additionally dealt
with issue of area shown in the respective sale deeds
of the petitioners and respondent no.1 executed by their
respective vendors. It is held that the area mentioned in
the sale deeds corroborate case of the respondents.
The reliance is also placed on orders passed by the
additional Collector, directing to increase area from 148.1
sq.mtrs. to 181.16 sq.mtrs.
7 920.WP-14488-2023.doc
12. Both the Courts below have recorded findings on
the basis of the sale deed dated 05.06.2013,
construction permission, property extract and the orders
passed by the Revenue Authority. I do not notice any
perversity or patent illegality to cause interference in the
impugned orders.
13. The conclusion drawn by both the Courts below are
plausible. The present matter involved intricate question
of facts. Unless there is full-fledged trial, it cannot be
concluded whether there is an encroachment or not.
The Courts below while conducting enquiry under Order
39 of the Civil Procedure Code cannot conduct mini
trial. At that stage of the matter only, prima facie
balance of convenience and irreparable loss are the
parameters. I find that in the wake of parameters, the
discretion has been properly exercise by both the Courts
below.
14. The submissions of learned Counsel for the
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petitioners that order passed by the Deputy Collector is
secured by misrepresentation and behind back of the
petitioners cannot be accepted at this stage. There is no
appeal preferred against the order. The petitioners will
have to prove their case by leading substantive evidence
before the trial Court. Similarly the submission that the
respondent no.1 is making construction exceeding the
limit cannot be accepted at this juncture.
15. It appears that the respondent no.1 has made
construction upto slab level and thereafter it is stopped.
If he wants to continue with the construction that would
be at his risk. Obviously the construction made by the
respondent no.1 shall be subject to outcome of the suit.
16. I do not propose to interfere in the impugned
judgment and order.
17. The writ petition is dismissed. The construction
made by the respondent no.1 shall be subject to the
9 920.WP-14488-2023.doc
outcome of Special Civil Suit No.55/2023 and the
respondent no.1 shall not claim equity. Rule is
discharged.
[SHAILESH P. BRAHME, J.]
Najeeb.
Signed by: Mohammad Najeeb
Designation: PA To Honourable Judge
Date: 22/12/2023 15:37:47
