Bombay High Court
Namdev Daulatrao Suryawanshi And ... vs Sanjay Raghunathrao Matlakute ... on 3 March, 2023
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.6678 OF 2022
IN SA/430/2019
WITH
CIVIL APPLICATION NO.16171 OF 2022
NAMDEV DAULATRAO SURYAWANSHI AND ANOTHER
VERSUS
SANJAY RAGHUNATHRAO MATLAKUTE
...
Mr. V.D. Salunke, Advocate h/f Mr. S.K. Chavan, Advocate for applicants
Mr. K.P. Rodge, Advocate h/f Mr. P.G. Rodge, Advocate for respondent
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 03rd JANUARY, 2023
PRONOUNCED ON : 03rd MARCH, 2023
ORDER :
1 Present application i.e. Civil Application No.6678 of 2022 has
been filed for injunction and it is along with the Civil Application No.16171
of 2022 for modification/review of the order passed by this Court on
11.02.2021.
2 The Second Appeal is admitted by this Court by order dated
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11.02.2021 and substantial questions of law have been framed. There was a
separate application for injunction i.e. Civil Application No.8960 of 2019 and
it was observed that since no evidence was produced by the applicants that
they had sought interim injunction through the proceedings and even after
the pronouncement of the Judgment and Decree passed by the First Appellate
Court it was held that no case is made out for grant of injunction.
3 Heard learned Advocate Mr. V.D. Salunke holding for learned
Advocate Mr. S.K. Chavan for applicants and learned Advocate Mr. K.P. Rodge
holding for learned Advocate Mr. P.G. Rodge for respondent.
4 It has been pointed out that in fact application Exh.5 was filed in
Regular Civil Appeal No.101/2011 and Regular Civil Appeal No.102/2011 by
the present appellants to challenge the Judgment and Decree passed in
Regular Civil Suit No.155/2007 as well as Regular Civil Suit No.364/2006
before the learned Principal District Judge, Parbhani. Now, the copy of the
said order has been produced showing that on 26.09.2011 that application
came to be allowed, execution of Judgment and Decree passed by the Trial
Court in Regular Civil Suit No.155/2007 was stayed and the respondents in
Regular Civil Appeal No.102/2011 i.e. present respondents were restrained
from causing obstruction to the peaceful possession and cultivation of the
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appellants/plaintiffs till the final disposal of the appeal. Learned Advocate
Mr. V.D. Salunke holding for learned Advocate Mr. S.K. Chavan now points
out the order passed by this Court on 02.08.2019, in which it was ordered
that "until the further orders from the Court, possession of the
appellants/plaintiffs over area admeasuring 01 H 82 R out of Gat No.491 of
village Singnapur, Tq. & Dist. Parbhani, shall not be disturbed." This order
was not specifically extended thereafter, but the wordings and the tenor
appears to be that there should be specific order for dismissing application or
rejection of the injunction. On this background, it is stated that the order
passed by this Court in Civil Application No.8960 of 2019 dated 11.02.2021
deserves to be reviewed.
5 Learned Advocate for the respondent has vehemently objected
the application and submitted that the said application is not maintainable as
it was not pointed out on the day of hearing that after the dismissal of the
appeals any further order was sought. The appeals came to be dismissed on
08.05.2019 and this Court passed the order on 02.08.2019. When no
protection was sought in between, the injunction could not have been
granted. Further, both the Courts below have given findings in favour of the
respondent as the appellants herein have failed to prove that their possession
over the suit property has been obstructed. When the possession is not
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obstructed, there is no question of grant of injunction. No case is made out
for review.
6 At the outset, it is to be noted that review is maintainable if there
is error apparent on the face of the record. It may be in respect of a fact
which was lost sight by the Court. The case in both the matters deserve to be
considered for a limited purpose once again. The appellants in both the
Second Appeals are the same i.e. they are plaintiffs in Regular Civil
No.364/2006 and defendants in Regular Civil Suit No.155/2007. Both the
matters were before learned Joint Civil Judge Senior Division, Parbhani.
Correspondingly the respondent No.1 in the Second Appeal was the original
defendant and plaintiff in respective cases. Regular Civil Suit No.364/2006
came to be dismissed, whereas Regular Civil Suit No.155/2007 came to be
decreed by the Lower Court on 16.09.2011. The two appeals arising out of
those two decrees were decided by learned Principal District Judge, Parbhani.
Both the appeals were dismissed on 08.05.2019. Hence, the second appeals.
As aforesaid, the Second Appeals have been admitted and substantial
questions of law have been framed. If we consider the facts in Regular Civil
Suit No.364/2006 at that place the suit property was admeasuring 01 H 82 R
from Gat No.491, for which plaintiff as owner and possessor was seeking
declaration. Further, declaration was in respect of sale deed which was
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executed by defendant No.2 in favour of defendant No.1 to the extent of 13 R
from the same Gat number as null and void and not binding on their rights.
Whereas suit property in Regular Civil Suit No.155/2007 was Gat No.491,
totally admeasuring 13 R situated at village Singnapur, Tq. Parbhani. Even as
regards 01 H 82 R land out of Gat No.491 was concerned, the Courts below
have held that the present appellants are the owners and possessors,
however, the injunction was rejected on the ground that the obstruction by
defendant No.1 has not been proved. This Court by order dated 02.08.2019
had protected the possession of the plaintiffs over said 01 H 82 R land from
Gat No.491 of village Singnapur, Tq. Parbhani. In view of the said order
being now pointed out as well as Exh.5 which was preferred by the present
appellants before the learned Principal District Judge, Parbhani was allowed
and the respondents therein were restrained from causing obstruction to the
peaceful possession to the appellants. The order passed by this Court on
11.02.2021 deserves to be modified/reviewed. It is not the case that the
review is in disguise to appeal but as certain facts were not brought to the
notice of this Court as well as this Court had not taken into consideration the
earlier order dated 02.08.2019 due to inadvertence, hence, the Civil
Application No.6678 of 2022 with Civil Application No.16171 of 2022
deserves to be allowed. The delay of 415 days caused in preferring the Civil
Application for review deserves to be condoned.
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7 For the aforesaid reasons, following order is passed.
ORDER
1 Civil Application No.6678 of 2022 with Civil Application
No.16171 of 2022 stands allowed. The delay of 415 days caused in
preferring the civil application for review stands condoned.
2 The order passed by this Court on 11.02.2021 in Civil
Application No.8960 of 2019 in Second Appeal No.430 of 2019 is hereby
reviewed and modified as follows :
i) The possession of the appellants over area admeasuring 01
82 R out of Gat No.491 of village Singnapur, Tq. & Dist. Parbhani
shall not be disturbed by the respondent or anybody claiming
through him, till the final disposal of the appeal.
( Smt. Vibha Kankanwadi, J. )
agd
